The secrecy of Georgia’s medical cannabis regulations still frustrates efforts to bring relief to patients

Competing companies looking to produce low-THC medicinal cannabis oil in Georgia have not been able to pry open the black box of the state’s Hope Act of 2019 in months to see six companies — out of 69 bidders — earn licenses for the marijuana – Distribute extract to patients across the state.

The state’s Open Records Act has also not been able to cope with the Hope Act. Lawmakers who tried to derail the process were also rebuffed.

Georgia State Assemblyman Alan Powell, a Hartwell Republican, has called the Hope Act inefficient and poorly written. This month, Powell unveiled HB 196, which he believes will make the work of the Georgia Access to Medical Cannabis Commission better overseen, more efficient, and subject to the provisions of the state’s Open Records Act, but will still protect trade secrets of companies involved in the solicitation apply for lucrative licenses.

“I think it’s going to do all of those things,” Powell said. “The Administrative Procedures Act is a body of rules that governs state oversight and openness. And if they (Commission) are part of it, then they have to abide by these rules. It’s a state law. You can’t be behind closed doors. They must be open to the public.”

Government regulation of medicinal cannabis behind closed doors raises questions. Have high profile lobbyists come before the commission for any of the bidder companies? Was there a conflict of interest between the winners of the deal and the politically appointed commissioners? Was the 69 company’s score influenced by a backroom deal?

Powell says he wants to shed some light, but after reviewing the bill, Joy Ramsingh, an attorney for the Georgia First Amendment Foundation, said that even if HB 196 is made law, the Cannabis Commission will still protect its work from the media and the public can .

“The problem is that the language he leaves in (16-12-220) also protects the commission from the Open Records Act,” Ramsingh said in an email. “In order for the Commission to be subject to the Open Records Act at all, the language needs to be changed to 16-12-220. At the moment, every document produced by the commission is classified under this section and his new bill will not change that.”

After 21 losing bidders appealed, an administrative judge used a partial exemption from the Open Records Act granted by the Hope Act to rule that all contract records must be sealed.

Ramsingh, on behalf of the Georgia First Amendment Foundation, filed a motion to unseal the records of the Cannabis Commission in Fulton County Superior Court so that the public could have access to the applicants’ evaluation process. This request is pending.

“There was a misunderstanding from the start about what we want and what people want versus what the companies want to keep secret,” Ramsingh said. “Nobody wants their trade secrets. Nobody cares. Nobody tries to compete with them, we don’t.

“What we’re trying to do is just get information on how the government is handling this, as opposed to what the companies have to hide. We are not a threat.”

The biggest threat to legalizing low-THC oil, according to Powell, may be the performance of the commission itself. Thursday night, the commission had to repeal the rules it passed on January 25 governing testing, inspections and distribution of the controlled substance.

“They passed the rules and I told them they were not ready to pass the rules because they had so many clerical errors according to our attorneys who reviewed them,” Powell said. “I advised them to wait a week and clean it up and then vote and they gave me the bird. Then they should announce it 30 days in advance and they didn’t announce it. They had to revoke their rules and wait 30 days.”

The Hope Act protects trade secrets of companies that have applied for a license. But the law goes too far, its critics claim, by declaring that the commission does not have to provide a public record of how it rated or judged those 69 companies for the public to see if they are fit to manufacture the drug.

How the six companies won these hotly contested and lucrative licenses remains a mystery to the public and infuriates Powell.

“It’s a complete (mess),” Powell thundered into the phone. “They will not even pass information to a sitting legislative committee. And it’s the biggest mess I’ve seen in my life. I warned the legislature last year that this (manufacture of the drug) would be held up by litigation, and it was.”

When asked if the Hope Act needs to be rewritten, Powell said, “Absolutely. This legislation was flawed when it left the House and passed to the Senate three years ago. How do you pass legislation where we, as duly elected officials, cannot ask questions?”

It’s not just Powell and other lawmakers confused by the Hope Act. Ramsingh, an expert in constitutional law, sees a law that does not take into account the public’s right to information. The Hope Act wipes out transparency in a state agency’s decision-making process, she said.

The Hope Act is “unfortunately much broader than the protections traditionally afforded, such as the Trade Secrets Act,” Ramsingh said.

The Hope Act states that anything the commission produces can be shielded and exempted from Georgia’s Open Records Act.

The lack of transparency is one of the reasons why, three years after the passage of the Hope Act and seven years after registered patients in the state were allowed to use low-THC marijuana-based oil, there is no product on the market in Georgia. Production of the cannabis oil has been delayed as 21 companies protested the decision to issue six licences. Several lawsuits filed, pending in court.

The lawsuits allege favoritism and backroom dealing in the valuation of licensed companies.

Powell said he had to speak to bidding companies to piece together the commission’s process for awarding the licenses, and it left more questions than answers. He wonders about the lobbying of the winning companies and the outside influence on the process.

What bothers Powell most is that secrecy has halted the manufacture of medicines for those in need. Georgia lawmakers, who for years supported legal access to medicinal cannabis, brought families to the state capitol, accompanied by children, who could be freed from seizures and other illnesses if they could get it with impunity.

A look at medical marijuana products at Vireo Health’s New York cultivation facility. Drew Angerer/Getty Images

“There’s a flaw in the way the commission works,” Powell said, “and if you don’t have an openness, they can do whatever they damn well want, and I think that’s what happened.”

Two companies were granted Class 1 production licenses to operate production facilities up to 100,000 square feet of indoor cultivation space: Botanical Sciences LLC and Trulieve GA Inc. Four other licenses were granted for Class 2 production.

As far as the Cannabis Commission is concerned, as of September 16, all 21 post-award protests against their decisions were heard and decided by the Georgia Office of Administrative Hearings’ designated Hearing Officer.

In a press release, the commission said: “The newly licensed companies have 12 months from today to become fully operational. Production licensees will be able to grow, manufacture and produce medicinal cannabis in the form of oil and low-THC products containing no more than 5% tetrahydrocannabinol (THC).”

One can hear the apparent dismay in Attorney Ramsingh’s voice on the phone because the commission, its members and their agents are public officials and have a duty of transparency.

“When I speak to (government) authorities, I try to remind them that transparency helps everyone,” Ramsingh said. “It reduces your risk of litigation. There’s a lot of interest, there’s a lot of curiosity, there’s a lot of criticism, there’s a lot of scrutiny because of the effort to keep all these things secret.

“I am not claiming that there was an ounce of corruption in this process. But the cold fact is that government secrecy, especially when strictly enforced over a long period of time, opens the door to future corruption.”

Transparency lowers the temperature and allows the public to gain some confidence because they can see what’s happening, she said.

“A lot of this (suspicion) could just go away if some of these things were just released voluntarily,” Ramsingh said.