Update by William Breathes: It is starting to look like there never was an opportunity for public comment on the proposed digital connection between law enforcement and the Colorado medical marijuana patient registry.
State officials are only able to point to vague language in state statute for authorizing this program.
The topic was never discussed in any of the Board of Health meetings from July 2010 to March 2011 that were specifically called to outline rules for HB-1284, the legislation that set regulations for Colorado's medical marijuana industry. The board went over a number of patient related issues that needed clarification at the time, including caregiver patient counts, which doctors would be allowed to write recommendations and additional registry-related matters.
But apparently the database didn't need any clarification -- not even in the final published rules. Nowhere in them is the Colorado Department of Health and Environment, the Colorado Bureau of Investigation or any other entity explicitly charged with creating a computer system.
Repeated requests to multiple state agencies still haven't produce a clear answer about when the Medical Marijuana Information Technology Program was ordered into existence by any rule-making group, legislative body, commission or person.
However, CDPHE spokesman Mark Salley believes the program was made explicit by language in HB-1284. He points to the phrase: "The state agency shall maintain a registry of this information and make it available twenty-four hours per day and seven days a week to law enforcement for verification purposes."
Which is confusing, because I don't see anywhere in that sentence or any of the language in HB-1284, Amendment 20 or the promulgated rules that call for direct police access to the patient database. And as activist Kathleen Chippi has pointed out, that language could easily mean staffing someone at the CDPHE 24/7 to answer the occasional call from a police officer trying to figure out if someone he pulled over can legally possess their meds.
"The medical marijuana registry is imbedded in the Colorado constitution and state statute," Salley wrote in an e-mail. "It's the department's priority to accomplish the required information exchange in the most effective, efficient way possible -- and that is connecting existing data systems for the limited purpose of confirming or denying registry status. We spoke with law enforcement, including CBI, after passage of HB 10-1284 to try to figure out how to make the information they are authorized to have available electronically to meet the 24/7 requirement, and ultimately the department agreed with CBI to create a link through CBI to provide the information to law enforcement."
Salley went on to assure that the information would only be used when appropriate and that a computer database allows the CDPHE to audit patient queries. "This link will not allow law enforcement to go fishing through the database for information they are not authorized to have, it simply allows them to confirm or deny registry status," he maintained. "No access to protected health information is provided."
Read that one over again carefully. Apparently, your status as a medical marijuana patient is not considered protected health information to the CDPHE, even though you need a qualifying medical condition to register as a medical marijuana patient in this state.
No word yet on if patients will be flagged automatically, as CBI director Ron Sloan suggested. But if the CDPHE doesn't feel that your status as a medical patient is protected information, it wouldn't be much of a stretch to see the department including it in any standard background check.
As we mentioned below, future meetings about the marijuana technology project will not be open to the public. CBI officials have directed all questions to the CDPHE; spokesman Salley says the department cannot provide Westword with any documentation about where the program currently stands, because such information doesn't exist.
Page down to read our previous coverage. Update by William Breathes, 11 a.m. June 13: Medical marijuana activists contend that last week's session about a tracking program that would link the MMJ patient registry with law enforcement computers, violated Colorado open meeting laws.
But the Colorado Department of Public Health and Environment sees things differently.
According to CDPHE spokesman Mark Salley, last week's meeting, and any future meetings about the database, do not fall under Colorado open meeting laws because the people involved are staff, not elected officials. Further, the meetings are not discussing policy, but figuring out how to implement policy.
The CDPHE maintains that policy discussions took place when lawmakers passed HB 1284, the law that set up the medical marijuana regulatory system in Colorado, as well as during the rulemaking committees that followed.
"There is no attempt by the [CDPHE] to be secretive about this," Salley emphasizes. "They are not doing policy. The policy was set forth by the legislature. This is a system being created - not policy. This is staff people working out how to facilitate that -- what needs to be done in order to do that."
Salley says no future meetings planned. However, he adds that since those gatherings aren't public, the CDPHE won't be giving notification of any in the future.
CDPHE officials also confirmed that they expect to receive funding for the program as of July 1, but they're not sure how long it will take to actually implement it.
Original item, 9:54 a.m. June 12: Last week, our William Breathes reported on a meeting about a medical marijuana tracking program that would link the MMJ patient registry with law enforcement computers.
Marijuana advocate Kathleen Chippi is upset that the get-together was not open to the public, and she plans to file a complaint alleging a violation of Colorado's Sunshine Laws -- if, that is, she and fellow activists can figure out the proper way to do so.
"The departments are not helping us," says an obviously frustrated Chippi. "We've talked to people at every department that was involved in the meeting," which focused on collaboration between the Colorado Department of Health and Environment and the Colorado Bureau of Investigation, "and we got responses like, 'Well, we can't answer that,' or something to that effect. They're not giving us a clear and concise answer. But the bottom line is, we know the meeting wasn't posted publicly, and we know from William's article that the public was asked not to come."
Indeed, CDPHE spokesman Mark Salley declined to confirm the meeting's 1 p.m. start time but stressed to Breathes that it was not open to the public.
In Chippi's view, the sharing of patient information with law enforcement in the way envisioned by the CDPHE and the CBI is unconstitutional. She points to this passage of Amendment 20, the measure that legalized medical marijuana in Colorado:
Authorized employees of state or local law enforcement agencies shall be granted access to the information contained within the state health agency's confidential registry only for the purpose of verifying that an individual who has presented a registry identification card to a state or local law enforcement official is lawfully in possession of such card.
Moreover, she thinks the database opens up the possibility that Colorado patients could be targeted and prosecuted by federal authorities, who don't recognize a right to use marijuana medically. She cites a story shared by attorney Josh Kappel, who told her about an individual with a concealed-carry permit who revealed himself to be a patient during a traffic stop. Two weeks later, the patient is said to have received a letter from the county informing him that his concealed-carry permit had been revoked because he is an illegal drug user.
Chippi feels that situations like these present even greater risks to patients now that the Colorado courts have refused to hear appeals of cases involving Jason Beinor and Leonard Watkins. Those rulings held that Amendment 20 is far from the impenetrable shield many MMJ users assumed it to be.
"For twelve years, our constitutional amendment has said something, and patients thought they were protected," Chippi says. "And for ten years, the health department has said the registry would never be put online at all. It was supposed to be one modem at the department of health. And now they're sharing information with law enforcement."
Assurances that this data flow won't be turned against patients are "more than hollow," in Chippi's view. "We're talking about people's livelihoods: their families, their children, their survival in what I consider to be a new Great Depression. Patients can't afford to be in court proceedings over their children, over their job -- and we know they're going to be shot down in court because of the Beinor and Watkins rulings."
How to get around this scenario? Chippi points to Initiative 70, a marijuana legalization measure she backs. Unlike Amendment 64, the Regulate Marijuana Like Alcohol Act, which has already been approved for the November ballot, it makes marijuana use a constitutional right. But that's not all. "We were able to address the Watkins ruling and federal preemption by stopping any resources from the State of Colorado being used in the enforcement of federal marijuana laws," she notes.
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At this point, Chippi believes supporters of Initiative 70 have collected roughly a third of the signatures necessary for it to qualify for the ballot -- but she's under no illusions about how difficult it will be to gather the rest by the early August deadline. She thinks backers will need to raise in the neighborhood of $250,000 earmarked for professional signature gatherers in order to make up the gap.
In the meantime, however, she's determined to file an open-meetings complaint over the database gathering -- and she doesn't plan on letting alleged bureaucratic obstruction stand in her way.
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More from our Marijuana archive: "Marijuana: Initiative 70 would make pot use a right, regulate it like tobacco."