• Dispensaries confidentiality is questioned
     | September 21,2012

    The state’s withholding of details about medical marijuana dispensaries is part of a constant tension between the state’s public records law and state agencies’ ability to create rules that make records confidential, according to an American Civil Liberties Union lawyer.

    At issue are administrative rules that have allowed the state Public Safety Department to exempt information about dispensaries from public-records law. Applications for proposed dispensaries are confidential, according to one rule.

    Responses to a Vermont Press Bureau records request about medical marijuana dispensaries arrived this week, revealing details about businesses that the state has sought to keep confidential.

    But the records released, consisting of email exchanges between two key state staffers and two dispensaries, had certain details redacted, such as email addresses and names.

    “You really don’t want agencies declaring themselves off-limits, but that seems to be what’s going on with these records,” ACLU of Vermont’s staff attorney, Dan Barrett, said after reviewing the records that were released.

    “I understand you want to keep patient information confidential, and that’s fine,” he said. “But things dealing with the application, I don’t think involves patients at all, and so may be overbroad.”

    The director of the state’s Division of Criminal Justice Services, Francis “Paco” Aumand III, said the information leans to the side of confidentiality because the department seeks to prevent illegal sales and theft, and to protect the confidentiality of registered patients — not to create an undue burden on dispensaries.

    “We had to craft the rules with those three goals in mind,” Aumand said. “The other part of our thinking is this is a unique experience for Vermont. It’s one that the Legislature debated for a long time, and the Legislature has the prerogative to debate these public policies in the future.”

    The department has suggested that the only public information was the information that was cleared with the dispensaries and then put out in a media release last week.

    The public-records request, however, uncovered additional information.

    For example, the Waterbury dispensary, Patients First, Inc., has an executive director with a doctorate in plant biology, and the board of directors includes representatives from the health care industry and a certified public accountant, one email from the request showed.

    Marijuana for the Burlington-based Champlain Valley Dispensary will be grown in South Burlington, the email also revealed.

    Information about the Champlain Valley Dispensary from the secretary of state’s office shows that officers include Burlington photographer Shayne Lynn, a Burlington yoga studio owner, Emily Garrett, and a South Burlington nonprofit founder, Nina Meyerhof.

    Meyerhof, whose nonprofit group helps children participate in leadership programs to advance global peace, said she became involved because a friend of hers with bone cancer who died several years ago benefited from medical marijuana.

    Lynn, the executive director for the dispensary who is also a member of its board, also identified Alan Newman, a co-founder of Magic Hat Brewing Co., as the fifth and final board member.

    Champlain Valley Dispensary and Patients First both received conditional approval last week, and Lynn said he hopes to open early next year. His business plan projected having some 250 patients as customers. Prices have yet to be determined and will depend on how many — or how few — choose his operation as their designated dispensary, he said.

    The dispensary has received a nonprofit certificate from the state, Lynn said. He added he wanted to obtain federal nonprofit status, too, but his attorney found case law lacked support for tax-exempt dispensaries.

    Lynn said he hopes to hire one full-time employee to manage the dispensary, which will be located in the Wing Building in Burlington, and two part-time staff to grow the marijuana.

    Dispensaries can only accept business from patients on the state’s medical marijuana registry, which is capped at 1,000 people. Dispensaries must pay an initial fee of $20,000 to obtain a certificate to operate and $30,000 each year to keep their certificate.

    The state will allow up to four dispensaries to open and has received five applications. Aumand, from the Division of Criminal Justice Services, said in addition to Burlington and Waterbury, other sites are planned for northwestern Vermont outside of Chittenden County and south central Vermont.

    Another application proposed a dispensary that would float around the state, he said.

    When the state considered adopting the marijuana dispensary law, it used Maine’s legal language as a model, so an earlier version of the agency rule had dispensary applications not being confidential, Aumand said. As the state studied the matter and gathered public comments on the proposed rule, the Public Safety Department decided to make the applications confidential, Aumand said.

    On Wednesday, after the partial information was released, the Vermont Press Bureau appealed to Public Safety Department Commissioner Keith Flynn for the redacted information and the applications.

    The state’s open records law allows public access to government documents, but nearly 300 exemptions to the law allow portions of documents to be stricken.

    Rep. Donna Sweeney, chairwoman of the House Committee on Government Operations, said the Legislature is working to formally require any agency to notify legislative committees whenever state agencies add rules that create exemptions from the records law.

    “The Legislature seems pretty suitably outraged that there are almost 300 exemptions,” Barrett said. “But in that survey of the 300, nobody looked at regulatory exemptions, incidences like this.”


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