The Honolulu Star-Advertiser told the state Health Department on Thursday it will file a lawsuit if the agency does not release by the close of business today the names of committee members who will award Hawaii’s first medical marijuana dispensary licenses.
Jeff Portnoy, attorney for the Star-Advertiser’s parent company, Oahu Publications Inc., delivered the notice to the Department of Health demanding it disclose the names.
“Be warned that unless those names are released by the close of business tomorrow (Friday), Oahu Publications will seek immediate relief from the state courts, including a court order that the names be released,” Portnoy wrote in the letter. “We strongly urge the DOH to avoid the inevitable public ridicule and suspicion that would accompany your continued refusal to make the names public.”
The department received 66 applications and will select eight of those applicants by April 15, granting them the right to open the first legal marijuana shops in Hawaii later this year. Hawaii legalized medical cannabis in 2000 but did not provide a way for patients to obtain the drug. Act 241, adopted last year, authorizes the DOH to issue eight licenses to sell medical marijuana: three on Oahu, two each on Hawaii island and Maui, and one on Kauai. Each licensee will be allowed to operate two production centers and two retail centers for a total of 16 dispensaries statewide.
DOH has chosen to keep the names of the selection committee secret to ensure the integrity of the selection process, spokeswoman Janice Okubo said Tuesday. “It is critical that the selection process be conducted without external influence and disruption, so that applicants are scored solely on their application and the merit criteria,” she said.
“That’s not a basis for not allowing the public to know the identities of the people who are making a decision that’s going to potentially make people very rich,” Portnoy said. “Not only is it in violation of state law not to release names during the evaluation process, but it also leads to suspicion on the part of the public regarding the process.”
Okubo said the Health Department denied an earlier request to release the names under Hawaii’s open-records law, the Uniform Information Practices Act, citing a clause that allows the state to withhold information that will cause “frustration of a legitimate government function.”
“What frustration is there that someone might get a phone call or letter, which they can simply ignore?” Portnoy said. “You would hope that the members of the committee are capable of withstanding any attempt to unduly influence their decision.”
Portnoy listed three similar cases where the state Office of Information Practices, the agency that rules on open-records disputes, has ordered names of committee members released.
In 1989 the OIP ordered that the names of law school admissions committee members be disclosed. It issued the same ruling for Honolulu Community College search committee members in 1990 and University of Hawaii Animal Care Advisory Committee members in 2003.
“Nowhere does (Hawaii’s open-records law) allow a government agency to keep government employees’ identities secret just because the agency is afraid of some unspecified external influence and disruption,” Portnoy wrote. “The whole point of (the law) is to prevent agencies from keeping information secret based on arbitrary fears and desires.”
The identities of committee members will likely be leaked to people with government connections, said Sen. Josh Green (D, Naalehu-Kailua-Kona). “People on the inside always find out,” he said.
“The administration would be wise to rethink their approach to dispensaries and just be transparent, rather than damaging public trust and losing in court,” Green added. “And if they are worried about rich or powerful people lobbying the selection committee, I would advise them to automatically reject any applicant that does that.”
After initially saying no decision had been made on disclosing information about committee members, the Health Department said Wednesday it would release the names once the process was completed.
“Releasing the names after the fact is not in conformance with the public records law,” Portnoy said.
Okubo, the Health Department spokeswoman, said the agency expects that lawsuits are possible regardless of whether it releases the names of selection committee members. Okubo said she wouldn’t comment further on issues involving pending litigation.
Gov. David Ige also declined to comment Thursday.
Portnoy letter to Pressler & J Okubo (Feb. 11)
