On Tuesday, Missouri’s highest court heard oral arguments from James Layton, representing the State of Missouri’s Department of Health and Senior Services, the administrating department of the state’s medical marijuana program, and Joshua Hill, representing Kings Garden – the denied medical marijuana license applicant who originally requested in discovery of its appeal that the Department provide complete and unredacted copies of successful cultivation license applications.

That request, and the following decisions which compelled the Department to comply with a modified version of the request, set the foundation for the case to be heard.

Listen to the oral arguments below.

https://www.courts.mo.gov/SupremeCourtVideo/SCaudio/SC99205.mp3

 

Background

The Department denied Kings Garden’s request, citing its interpreted constitutional duty, to protect the information of applicants. As a result, Kings Garden filed a motion to compel the state to produce the requested documentation.

AHC Commissioner Renee T. Slusher granted a motion to compel after Kings Garden agreed to limit the scope of its request to only questions where they did not receive full points. The Department was ordered to produce the corresponding documentation.

The Department continued to contend that it is bound by the constitution to keep private the information of applicants. In efforts to provide security and ensure the Department’s duty was upheld – Commissioner Slusher entered a protective order covering the produced documents and offered the Department the option to redact identifying information.

DHSS filed a petition for writ of prohibition, asking the circuit court to bar enforcement of Commissioner Slusher’s order compelling it to produce the information. The circuit court did enter a preliminary order in prohibition to “refrain from all action in the  premises until further order.”

The court quashed the preliminary writ and denied the DHSS’ petition after deliberation. The judgment stayed and the Department appealed.

 

The appellate decision 

DHSS argued only one point on appeal, maintaining their constitutionally mandated duty to protect the information of applicants, that “the circuit court erred in quashing the preliminary writ and denying its petition for a permanent
writ of prohibition because it claims that Commissioner Slusher acted outside of her authority,” arguing that the Department cannot be compelled to disclose applicant information.

The court affirmed the decision of the circuit court, writing in its judgment, “Article XIV, Section 1.3(5) expressly allows the constitutionally mandated confidential information in this case to be “used” for a purpose authorized by the section. The second sentence of Article XIV, Section 1.3(5) states, “Such reports or other information may be used only for a purpose authorized by this section.” In that sentence, “this section” refers to Section 1.3. Subsection (23) of Section 1.3 gives denied license applicants the right to appeal the Department’s denial to the AHC and, following the exhaustion of administrative remedies, the right to seek judicial review. Because an appeal to the AHC and the courts is authorized by Section 1.3, the plain language of Section 1.3(5) allows the confidential information to be used for the purpose of an appeal of a license denial. Furthermore, because Section 1.3(5) does not limit the use of the information in an appeal of a license denial, the information is subject to discovery as provided in 1 CSR 15-3.420, the regulation governing discovery in contested cases before the AHC.”

“To interpret Section 1.3(5) as not allowing the discovery of information from the successful applications in the appeals process would lead to the unreasonable and absurd result that unsuccessful applicants pursuing an appeal – and, in turn, the AHC and the courts – would be denied access to information that was an integral part of the Department’s decision to deny their applications. Without all of the information that formed the basis of the Department’s decision, no meaningful review of that decision can occur,” reads part of the judgment handed down by the Appellate Court.

The Department sought to transfer the May decision to the Supreme Court of Missouri.

Briefs

Harvest of Missouri LLC, which successfully obtained cultivation and other licenses, filed a brief as a friend of the Court. It argues the constitution guarantees confidentiality of applicant information and prohibits the department from disclosing such information with no exception during an unsuccessful applicant’s appeal. Alternatively, the company argues its applications contain trade secrets warranting “attorney eyes only” protection such that the information can be seen only by the attorneys and not their clients.

DHSS Brief

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