Appellate Court says DHSS will be required to disclose applications to the courts

A new appellate court decision requires the Department of Health and Senior Services to comply with a previous order from the AHC requiring the Department to produce documentation of Missouri Medical Marijuana license applications.

The Department had appealed the circuit’s court’s judgment quashing its preliminary writ of prohibition and denying its petition for a permanent writ of prohibition under the premise that it is constitutionally bound to keep confidential the information of medical marijuana license applicants.

Because an appeal to the Administrative Hearing Commission and the courts is authorized by Section 1.3(23), 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 Administrative Hearing Commission.

Therefore, the court upheld that the AHC commissioner did not act outside of her authority by compelling the disclosure of the requested applicant data to Kings Garden, an applicant who is appealing a license denial.

Background

Denied applicant Kings Garden originally requested in discovery of its appeal that the Department provide complete and unredacted copies of successful cultivation license applications, the Department denied this request, citing its interpreted constitutional duty. As a result, Kings Garden filed a motion to compel agreeing to limit the scope of its request to only questions where they did not receive full points. The motion to compel was granted by AHC Commissioner Renee T. Slusher and the Department was ordered to produce the requested documents. The Department was offered the option to redact identifying information and Commissioner Slusher entered a protective order covering the produced documents.

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 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.

Read the decision below.

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