Commentary: The New Mexico Foundation for Open Government (NMFOG) and freelance journalist Peter St. Cyr have dismissed their lawsuit against the New Mexico Department of Health after DOH amended its regulations that kept secret the names of licensed medical marijuana producers.
The lawsuit was filed last July in the state district court in Albuquerque, but NMFOG and St. Cyr stayed further action within weeks of the filing after DOH agreed to begin administrative procedures to remove the confidentiality provisions.
The suit also sought an order under the Inspection of Public Records Act directing the DOH to release the names of all such producers as well as applicants for producer licenses.
"We appreciate the Department's willingness to rethink and revamp its original confidentiality rules, which we've long believed were contrary to IPRA and incompatible with the Compassionate Use Act," said Albuquerque attorney Charles "Kip" Purcell, who represented the plaintiffs in the case.
As early as an October 2009 letter and in subsequent communications to DOH, NMFOG had protested the legality of the regulations, which shielded from disclosure the names, addresses and telephone numbers of persons or entities who have either applied for or received a DOH license.
However, nothing in the statute itself allows such secrecy, other than confidentiality for the names of qualified patients.
"An administrative agency may exempt its documents from IPRA by regulation only if the regulation is 'statutorily authorized,'" Purcell said. "In our view, the Department's original secrecy rules were never 'authorized' by the statute, but rather at odds with it."
"We're pleased that the Department has rectified that situation and recognized that the public has a right to know where these heavily regulated businesses operate and who owns the valuable public licenses necessary to operate them," Purcell added.
Both St. Cyr and NMFOG had repeatedly requested the names of the licensed cannabis producers under IPRA, but DOH denied their requests based upon the prohibition in the regulation.
"The new rules are already working, and we are getting access to important public health program documents that have been denied or blacked out for years," said St. Cyr. "Now, I hope other agencies will see the writing on the wall and stop using their own administrative code to exempt themselves from our state's open records laws."
Gregory P. Williams, president of the NMFOG board, noted that carving out exceptions to the public's right to know is a job for the legislature.
"An executive department can't exempt its own records from IPRA unless the text or the spirit of the governing statute demands that result, " Williams said.
The names of patients authorized to use medical marijuana remain confidential as required by both federal and state law.
### About FOGFounded in 1990, The New Mexico Foundation for Open Government educates, advocates and litigates for transparency. FOG is the only statewide non-profit, non-partisan, member-supported organization dedicated to protecting the public's right to know. FOG is committed to enhancing our democracy by informing citizens and officials about their rights and responsibilities under New Mexico's Sunshine Laws. To learn more, visitwww.nmfog.org.