The News Service of Florida – July 8, 2016
by Dara Kam
Lawyers for the Florida Department of Health have given a Jacksonville nursery until Monday to take action on an attempt to keep secret a list of investors affiliated with a bid to become one of a handful of medical marijuana operations in the state.
The move came after wrangling between lawyers for the state and Loop’s Nursery and Greenhouses during a hearing before Administrative Law Judge R. Bruce McKibben, who on Wednesday sided with the nursery’s request to keep the names of investors in an affiliated business out of the public record.
The fight involves a list of five names scratched out Wednesday by the nursery’s owner, David Loop, on a sheet of paper from a yellow legal pad.
A day after telling lawyers in the case that he preferred to “err on the side of confidentiality,” McKibben on Thursday re-iterated his decision that the investors’ names were off-limits to the public.
“We protect everyone just as a matter of course because it’s just, you know, it’s a nice thing to do,” the judge said.
Loop’s lawyer, Jon Moyle, said the names of the investors should be kept secret because they were not direct owners of the nursery, which is seeking a license in the Northeast region of the state to grow, process and dispense medical marijuana.
Moyle pointed out that McKibben had already entered a protective order making certain information in the case unavailable to the public.
But lawyers for the state argued that McKibben’s stance conflicted with a May ruling by Tallahassee judge in a separate case. Leon County Circuit Judge Charles Dodson ruled that the names of investors affiliated with an applicant seeking a medical-marijuana license in the Central Florida region were not a “trade secret” subject to exemptions from the state’s broad open-records laws.
Eduardo Lombard, a private lawyer representing the Department of Health, told McKibben that Dodson’s order in the other case meant the state was obligated to provide the list of names related to the Loop’s hearing.
Reporters from The News Service of Florida and Politico, present in the courtroom when the issue arose on Wednesday, immediately requested copies of the names. Lombard told McKibben that, as far as the state was concerned, the document was a public record subject to disclosure.
“You can’t just hide things. This is a public forum,” Lombard said. “If there’s an exemption, (Loop’s) can claim it and keep things out, but otherwise this isn’t supposed to be a secretive process, and there’s no statutory basis to exclude these names of an entity that Moyle does not represent.”
Since the hearing began on Wednesday, McKibben ordered lawyers to refer to the investors by their initials and on at least three occasions cleared the courtroom at Moyle’s request during testimony involving such matters as security and finances.
Department of Health officials on Thursday put Moyle on notice that they would release the list if he did not take further legal action by Monday. Moyle would have to seek an order from a circuit judge to block the records from being released.
“The department has determined that this list, although designated as confidential by the parties, is not a trade secret,” Department of Health senior attorney Amanda Bush wrote. “As you are aware, an administrative order cannot create an exemption or exclusion to the Florida Public Records Act. The department anticipates releasing this list unless Loop’s takes appropriate action to oppose the disclosure by the close of business on Monday, July 11.” [READ MORE]