Pennsylvania Department of Health v. Mahon (84 CD 2023 and 129 CD 2023)

Case Numbers: 84 CD 2023 and 129 CD 2023

Court: Commonwealth Court of Pennsylvania

Clients: Spotlight PA, Ed Mahon

Entry of Appearance Filed: Feb. 21, 2023

Background: In October 2022, Spotlight PA reporter Ed Mahon submitted two separate requests to the Pennsylvania Department of Health under the state’s Right-to-Know Law seeking records related to medical marijuana certifications. In the requests, Mahon asked for aggregate data showing the number of medical marijuana certifications issued by practitioners in the state’s medical marijuana program, including one particular doctor who the Department of Health has accused of violating state regulations by approving a patient’s certification for medical marijuana without reviewing the patient’s medical records. Neither of the requests sought patient identification information.

The Department of Health denied both of Mahon’s requests, claiming the records were protected from disclosure under a confidentiality provision of the state’s Medical Marijuana Act. Mahon then appealed both denials to the Pennsylvania Office of Open Records. In two separate final determinations, the OOR concluded that the Department of Health must release the aggregate number of medical marijuana certifications issued by practitioners in the state. However, the OOR held that the Department of Health could withhold additional information related to individual medical marijuana certifications, including “the qualifying condition or conditions listed in support of the certification.”

The Department of Health appealed the OOR’s final determinations to the Commonwealth Court of Pennsylvania, where the two cases were consolidated. Paula Knudsen Burke, the Reporters Committee’s Local Legal Initiative attorney for Pennsylvania, began representing Mahon and Spotlight PA in this matter in February 2023.

Related: Burke previously represented Mahon and Spotlight PA in a similar public records dispute with the Department of Health over data related to the state’s medical marijuana program. In that case, the Commonwealth Court ultimately ordered the health officials to disclose data that show how many patients are certified to receive medical marijuana as a treatment for anxiety, cancer, opioid addiction and other qualifying conditions under the state’s medical marijuana program. Using those records, Mahon published a data-driven investigation that helps Pennsylvanians better understand how patients are using the state’s relatively new medical marijuana program. Learn more about the investigation and the legal effort behind it in this RCFP interview with Mahon.

Updates:

• On Nov. 8, 2023, the Commonwealth Court held that the records requested by Mahon were not protected from disclosure under the Medical Marijuana Act’s confidentiality provision, and ordered the Department of Health to produce the data in compliance with the OOR’s final determination. Read Spotlight PA’s coverage of the court’s ruling.
• On Aug. 26, 2024, Spotlight PA published an investigation based in part on records obtained through this litigation. Mahon’s reporting found that the Pennsylvania Department of Health “has rarely blocked practitioners from joining Pennsylvania’s medical program based on past discipline,” including some who have been among the top doctors for issuing medical marijuana cards.  

Filings:

2023-01-13: Final determination of the Office of Open Records (129 CD 2023)

2023-01-03: Final determination of the Office of Open Records (84 CD 2023)

2023-02-13: Department of Health petition for review (129 CD 2023)

2023-02-02: Department of Health petition for review (84 CD 2023)

2023-02-21: Entry of appearance (129 CD 2023)

2023-02-21: Entry of appearance (84 CD 2023)

2023-04-12: Order granting application for consolidation

2023-11-08: Order