Spotlight PA investigation sheds new light on Pennsylvania’s medical marijuana program

Last week, Spotlight PA published a data-driven investigation that helps Pennsylvanians better understand how patients are using the state’s relatively new medical marijuana program. The story, written by investigative reporter Ed Mahon, revealed that anxiety is by far the most common reason why patients are approved to receive medical marijuana certifications, despite conflicting evidence about whether cannabis is the best way to treat the condition.

Mahon’s investigation was based on more than one million records he obtained from the Pennsylvania Department of Health with legal support from Paula Knudsen Burke, the Reporters Committee’s Local Legal Initiative attorney for Pennsylvania. Last August, a three-judge panel of the Commonwealth Court of Pennsylvania ordered the Department of Health to turn over aggregate data that shows how many patients are certified to receive medical marijuana as a treatment for anxiety, cancer, opioid addiction, and other qualifying conditions, holding that the records could not be withheld based on privacy concerns.

“These certifications allow hundreds of thousands of patients to legally use cannabis in the state,” Mahon wrote in a behind-the-scenes look at his investigation. “Our analysis offers the first comprehensive look at how the decision to add anxiety disorders as a qualifying condition transformed Pennsylvania’s program, and, in the eyes of some, made it possible for basically anyone to get a medical marijuana card.”

The Reporters Committee recently spoke with Mahon to learn more about his investigation, the legal battle to access the medical marijuana records, and what the Commonwealth Court’s ruling will mean for access to public records in Pennsylvania in the future. (This interview has been edited for clarity and length.)

Why did you originally request this medical marijuana data from the Department of Health back in June 2021?

We were investigating the death of a Bucks County man, Tyler Cordeiro. He had been wrongfully denied addiction treatment funding because he had a medical marijuana card. So we were trying to understand that issue. We wanted to have a basic understanding of it. How many people get medical marijuana cards for opioid use disorder? I wanted to just give some context to readers in that larger story about Tyler.

Specifically what kinds of records were you seeking?

When a doctor approves someone for medical marijuana, they are issuing a certification. I wanted to know the total number of certifications, total certifications for opioid use disorder on its own, and then total certifications for opioid use disorder and other conditions. So we started with the opioid use disorder and then quickly in my own reporting I realized that it was much bigger than just asking about opioid use disorder, but that was sort of the initial question.

The Department of Health denied your records request for privacy reasons, but you weren’t looking for patient information, right?

Yeah, their initial denial was that there are patient privacy protections in the [state’s Medical Marijuana Act] that ban the release of this information, and their essential argument was that these protections are broad. But our point was that we were looking for aggregate data, and, by the Department’s logic, they wouldn’t be able to release any information about the total number of patients in the program, which obviously they do. And they have also in selective cases released information about patients with certain conditions. So they were taking the position that the law was very broad, and our argument was that the law was more narrow.

You appealed the Department’s denial to the Pennsylvania Office of Open Records, which largely ruled in your favor. That’s when the Department appealed to the Commonwealth Court. Why did you turn to Burke and the Reporters Committee for legal support?

I had been familiar with Paula for years. I knew that she had fairly recently joined the Reporters Committee. [RCFP] was looking for good cases, and we were looking for help. And I knew Paula had expertise in the Right-to-Know Law, particularly with Health Department issues. So it just seemed natural that we would reach out to Paula.

What did it mean to you to have a Reporters Committee attorney represent you at no cost?

We’re a nonprofit. Every bit of money that we get from donors goes to support the journalism that we’re doing. So the idea that we would have to spend thousands of dollars for this would mean there would be other things that we couldn’t do. I wasn’t involved in all of the financial conversations, but it’s a relief to have this support.

Paula is a fantastic lawyer. She was very collaborative, very open to suggestions from us. She was very thorough, very detailed, very good at sort of explaining the process to me but then also just making these very strong arguments.

After the Commonwealth Court ruled that the certification data must be released, the Department of Health turned over more than one million records. What struck you most after you began analyzing this data?

I’ll take a quick pause and go back to what had happened in the year since we started this [fight for the records]. In June of 2021, we started asking about certifications. We published a series of articles related to Tyler’s death and the confusion over medical marijuana, and stories about opioid use disorder as a qualifying condition. And that led us to do a series of stories looking into the big business of medical marijuana cards and some of the flaws with the Department of Health’s oversight of the program.

During that year and a half or so, we had been building up these stories that really showed how, in some ways, these medical marijuana card companies, some of them were operating in ways that were questionable. So that gave us new context for how we were going to analyze this certification data. How we looked [at the data] was a little bit different than how we would have looked at it if we had gotten it a year and a half earlier. We knew a lot more about the whole ecosystem.

So then we get the million records and we start analyzing them. And then pretty quickly it becomes clear that anxiety disorders are dominating the program. Anxiety was added as a qualifying condition [for the medical marijuana program] in 2019. It wasn’t part of the original law. And at the time there wasn’t much discussion or debate about its addition in the program, but what we saw in the data is that it really transformed the program by greatly expanding who is able to get medical marijuana.

Why does this story matter to Pennsylvanians?

There are a couple of aspects of it. One, there’s the question of whether people who are suffering from anxiety are best served by going through treatment with cannabis. We’ve talked with many experts who question the medical benefits of this.

Two, as we were looking into it, there is this question: Is anxiety being treated as a loophole for de facto legalization for recreational marijuana? If we’re going to have de facto legalization of recreational marijuana, does that mean we should make some significant changes to the medical marijuana program? Is that a case for full-scale legalization, which is happening in New York, New Jersey, and Maryland? So that’s another key question. And just more broadly, the program is serving hundreds of thousands of people, and this data helps us understand how it’s serving them and potentially how well it’s serving them.

This story was a long time in the making. Why was it worth investing so much time and effort into this investigation and even going to court for these records?

At Spotlight PA, we’re trying to hold government accountable. We’re doing stories that no one else is doing. So we dedicate the time and resources to these types of stories. [This investigation] started with that one person and trying to understand how the medical marijuana program — and the confusion about it — had impacted him. And then, more broadly, it was about how it was affecting hundreds of thousands of other people in the state.

There’s another impact of this case: We’ve had some other [Right-to-Know Law] disputes with the Department of Health. And recently we had two Office of Open Records rulings in our favor where they cited the case that Paula worked on. As we speak right now, we’re waiting to hear what the Health Department is going to do in those cases, but the fact that we had this earlier victory, and the Office of Open Records has now incorporated that into their rulings, is a very good precedent for the future. It’s really huge.

Specifically, in this case, the Commonwealth Court ruling was rejecting the Department of Health’s argument for a broad interpretation of the privacy protections in the medical marijuana law. So since the Commonwealth Court rejected that broad interpretation, we’re seeing now more information that the Commonwealth Court and the Office of Open Records will allow to be released. Also, there’s the view that this allows more information to be released [proactively by state agencies]. Some agencies might wonder or have legitimate concerns about whether they are able to release certain information, and these kinds of victories clearly establish that this information can be released. So that can be beneficial for agencies if they have legitimate questions about what can be released.

Is there anything else you’d like to add?

I’m just very grateful for Paula and the Reporters Committee. Paula was great to work with. This information is serving the public in Pennsylvania. I’ve heard from a variety of groups who have different positions about medical marijuana, but they were pleased to see this information being released because, in their view, it helps them better understand how this program is working.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.