Lower court decisions in medical cannabis case erode Georgians’ right to know.
The Georgia First Amendment Foundation is asking the Supreme Court of Georgia to protect citizens’ rights to access judicial records by reversing lower court rulings.
In its petition to the Court, the foundation is seeking release of judicial records related to disputes between companies that won and lost licenses to manufacture medical cannabis in Georgia. In June 2022, a judge in the Georgia Office of State Administrative Hearings (OSAH) sealed in perpetuity all judicial records related to litigation that arose from the disputes. A judge in the Superior Court of Fulton County upheld the administrative court’s ruling in February. In April, the Appeals Court of Georgia declined to weigh the impact these lower court decisions could have on Georgians’ access to judicial records.
That led to the foundation’s petition to the Georgia Supreme Court, filed April 30. It details flaws in the lower courts’ decisions, and how those decisions harm the public’s right to know:
- The Office of State Administrative Hearings departed from Georgia Supreme Court precedent that reinforces Georgians’ right to access judicial records.
- OSAH wrongly interpreted open records exemptions allowed by the Hope Act, the 2019 law that established the Georgia Medical Access to Cannabis Commission and paved the way for medical cannabis commerce in Georgia. The act’s exemptions do not apply to sealing judicial records.
- OSAH erred by finding that cannabis commission rules do not allow Georgians to challenge restrictions on public access to judicial records.
- OSAH also erred by not following the cannabis commission rules, which require the administrative law judge to review the judicial records privately and issue a narrowly tailored order that only restricts access to “confidential information.” Fulton Superior Court erred by upholding that failure.
- The Fulton Court wrongly held that the Administrative Rules of Procedure do not apply in this matter and that the Administrative Rules do not presume access. The court also failed to limit the seal to include only confidential information.
- Finally, Fulton Superior Court erred by not finding that the Georgia First Amendment Foundation (or any other member of the public) has standing to appeal OSAH’s decision to impose a blanket seal, forever, on the judicial records related to the disputes over medical cannabis licensing in Georgia.
The foundation argues that the lower court rulings set a dangerous precedent “that when medical cannabis companies litigate their licensure rights in the State of Georgia, all judicial records relating to that dispute — without limitation or distinction — must be sealed, forever. Worse, the [lower court decisions hold] that the only parties who have standing to bring a legal challenge against a blanket seal are the parties involved in the dispute.”
“This bizarre holding is wildly out of alignment” with Georgia Supreme Court precedent supporting citizens’ right to inspect judicial records, according to the foundation’s petition. If the lower court decisions stand, “the hearing officers of a certain administrative court will be permitted to hear testimony, receive legal arguments, and issue opinions affecting the rights and health care of thousands of Georgians — all from behind a shield of unqualified, perpetual, inviolable secrecy, unlike that of any other tribunal in Georgia.”
Secret legal arguments, evidence and government decisions
If the lower court decisions stand, the licensure and related operations of medical cannabis commerce are, in practice, “secret government decisions, made upon secret legal arguments and secret evidence,” the foundation argues. “Georgia jurists will be constrained to hear appeals relating to the regulation and production of a controlled substance from within a newly created star chamber.”
In urging the Georgia Supreme Court’s reversal, the foundation argues that the collective impact of the lower court decisions “threatens the reputation and integrity of the judicial process by creating a rule that administrative tribunals are exempt from transparency, even when they are deciding the health care rights of millions of Georgians, and by further holding that no member of the public can challenge that rule.”
Wrestling with oversight, waiting for medication
Georgia lawmakers and courts have wrestled with oversight of the business of medical cannabis in Georgia since the Hope Act was passed in 2019. House Bill 196, which would make the Georgia Access to Medical Cannabis Commission subject to the state’s open meetings and open records laws, did not pass the 2023 legislative session. In late April, the cannabis commission granted licenses to allow two companies to begin selling low-THC oil to patients on Georgia’s medical cannabis registry; those patients had waited four years for access to the medication.
The Georgia First Amendment Foundation, established in 1994, is a nonpartisan nonprofit organization that works to protect and expand Georgians’ access to public records, meetings and court proceedings, as well as their right to free speech. The foundation educates citizens, public officials, journalists and lawyers on these rights. Attorneys Joy Ramsingh and Gerry Weber, co-chair of GFAF’s Legal Committee, are leading the foundation’s legal efforts to increase transparency in the regulation of medical cannabis in Georgia.
