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The Illinois Cannabis Bill Has a Problem: Secrecy

Transparency advocates say language in the working draft, which is steaming toward a vote, allows the state to withhold vital information.

May 20, 2019 6:55AM EDT Illinois

Jeremy Borden @Jeremy_Borden

Jeremy Borden has worked for the Washington Post, Christian Science Monitor and City Bureau, among other publications.

A sweeping secrecy provision that has hampered the ability of journalists, lawyers, academics, and interested citizens to assess Illinois’ medical cannabis program has been partially maintained in the working version of proposed legislation that would legalize cannabis for adult-use, which is headed toward a vote—possibly by the end of the month.

That has prompted open government experts and others asked about it by Cannabis Wire to call for greater attention to transparency before the bill is further considered.

The secrecy provisions could be serious. The Illinois medical cannabis law bars state officials from disclosing basic information about cannabis business license holders and applicants, making it difficult to know who received lucrative licenses and why. Starting on page 149 of the new proposal to legalize adult-use cannabis, sponsored by Chicago-area lawmakers Senator Heather Steans and Representative Kelly Cassidy, the confidentiality section would make nearly all information about applicants and licenses a secret:

“[I]nformation received and records kept by the Department of Financial and Professional Regulation for purposes of administering this Article are subject to all applicable federal privacy laws, confidential, and exempt from the Freedom of Information Act, and not subject to disclosure to any individual or public or private entity,” the bill reads.

Matt Topic, a Chicago-based attorney who frequently handles Freedom of Information Act-related lawsuits, reviewed that language and another section of the bill that mentions FOIA at Cannabis Wire’s request. He said the bill’s secrecy provisions are troubling.

“There is a tendency in Springfield for the General Assembly to impose a lot of secrecy without thinking this through,” he said. Confidential business information that companies might not want to be made public would already be covered under existing exemptions to Illinois FOIA law, he said. There might also be a good case for other types of exemptions for cannabis businesses—for example, building security—but basic application and owner information should be available to the public, he said.

“If we want to know if less-than-qualified insiders are getting lucrative [licenses] because of their connections, we need to be able to see this kind of stuff,” Topic said. “Anytime there is secrecy like this, people should rightfully be concerned about what could go wrong.”

Illinois has a track record of corruption at the state and local levels. Before the last governor, Bruce Rauner, the previous two were convicted of charges related to corruption in office.

Rose Ashby, a Steans staffer working on the cannabis bill, insisted that legislators had not meant to include such severe language about transparency. She said the small section of the more than 500-page bill was the result of “rogue cut/paste during drafting” which had “resulted in some unintentional internal contradictions.” Another section of the bill on page 271, she said, contains language about the legislature’s intent to be transparent about the licensing process and would be emphasized in a new revision. It isn’t clear when amendments to the bill are coming and a Senate committee vote has not yet been scheduled, she said.

“The intent is that the ownership will be transparent,” Ashby told Cannabis Wire. “Applications and licenses are subject to FOIA.”

Representative Cassidy told Cannabis Wire in an email that she disagrees with the interpretation that the bill would not provide adequate transparency, while acknowledging that the bill’s confidentiality language is a “confusing section.” Cassidy said the bill “provides transparency while offering appropriate protections for sensitive data.”

As Cassidy sees it, the bill seeks to ensure that plans for security or confidential business information are not released while allowing the public to see key aspects of the new adult-use cannabis program, such as who own licenses.

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Illinois is far from the only state to be less than transparent with its cannabis licensing programs. As Cannabis Wire previously reported, many states’ secrecy provisions are far-reaching when it comes to license holders and their stakeholders.

Some policymakers have argued that federal prohibition makes it difficult for states to be open about everyone involved in state-legal programs, who could, technically, be targeted at any time by federal prosecutors or regulators, although a widespread crackdown has not occurred in nearly a decade. Arizona, for example, doesn’t even supply the locations of dispensaries or the names of physicians willing to write medical cannabis recommendations. Moreover, just as some transparency advocates argue that openness around the licensing process can curtail corruption, government officials in some states contend that withholding information about those who make licensing decisions may prevent efforts to influence the process.

“There’s a real policy tension here,” Andrew Freedman, a cannabis legalization expert who served as Colorado’s first Director of Marijuana Coordination, previously told Cannabis Wire. “For the most part, people want to know how big the industry is, where it’s concentrated, for this information to be part of public dialogue.”

Freddy Martinez, the director of the nonprofit open government advocacy group Lucy Parsons Labs, told Cannabis Wire that Illinois lawmakers should ensure that the adult-use bill provides for transparency given, especially, Chicago’s track record related to disparate policing in communities of color.

“It is well known that the Chicago Police Department’s marijuana arrest records show a strong racist enforcement, and this bill attempts to address this history,” Martinez said. “Without FOIA we can’t analyze the true impact of the restorative justice approach to this legalization bill.” In the proposed legislation, lawmakers have included provisions that would ensure past cannabis convictions are expunged and new dollars and business opportunities provided for communities that have been the most adversely impacted by the war on drugs. Progress toward those goals must be monitored, Martinez said.

An initial public hearing on the legislation was held last week by the Senate Executive Committee, with lawmakers and a representative from the office of Governor J.B. Pritzker indicating that at least parts of the bill related to home grow and expungements may be revised.

Lawmakers say they hope to pass the bill before the end of the legislative session, in just two weeks.