Ryan M. Holz, Partner
Hundreds of Illinois residents – many of them Social Equity Applicants – spent hundreds of hours and thousands of dollars submitting applications to the Illinois Department of Agriculture (the “Department”) for cannabis craft grow, infuser, and transportation licenses. Many were enticed to do so by elected officials and civil servants who promised the application process would be transparent and advance principles of social equity.
In July 2021, the Department announced winners. But it did not provide any information (to winners or non-winners) about the scores that their applications received out of the 1,000 available points. This was in stark contrast to the Illinois Department of Financial and Professional Regulation (the “IDFPR”), which provided applicants with scores broken down by exhibit. With virtually no information, many applicants have rightfully questioned how close they came to a winning score and/or what went wrong. Those questions are particularly ripe right now, with applicants wondering whether their scores are possibly sufficient to receive one of the 60 additional craft grow and 60 additional infuser licenses scheduled to be awarded next month.
One would think that an applicant’s score would, if not provided voluntarily, be made readily available by the Department. After all, Illinois has a robust Freedom of Information Act, 5 ILCS 140, and scores would not seem to qualify as some sort of state secret that would cause harm if disclosed. Sadly, that assumption is wrong. The Department and the Office of the Attorney General (the “AG”) have repeatedly stymied Freedom of Information Act requests and appeals for applicant scores. It now appears that the Department has no intention of
releasing the cannabis craft grow, infuser, and transportation scores, and the AG seemingly has no plans to force the Department to do so. ever
In a recent communication, the Department asserted that Section 7(1)(q) of the Freedom of Information Act exempts disclosure of applicant scores. Section 7(1)(q) exempts from disclosure “[t]est questions, scoring keys, and other examination data used to determine the qualifications of an applicant for a license or employment.” According to the AG (on appeal after the Department denied a Freedom of Information Act request), scores qualify as “other examination data used to determine the qualifications of an applicant.”
Legally, this position is a stretch. An applicant’s score is not the “test questions” or “scoring keys” so the Department and the AG have fallen back on the broad catch-all provided in Section 7(1)(q). But while the catch-all is broad, an applicant’s score is not “examination data
the qualifications of an applicant.” Rather, it used to determine the qualifications of an applicant boiled down to a numeric score. In other words, the score is the outcome of the evaluation into the applicant’s qualifications, but is not itself “used to determine” those qualifications. Moreover, stretching the language of Section 7(1)(q) to prevent applicants from receiving their scores is contrary to the entire purpose of the Freedom of Information Act. The Department and the AG should be erring on the side of disclosing information, and should not be contorting statutory language to avoid providing transparency to the public. is
But not only is this position legally shaky, it is also unjust, misguided, and counterproductive. It is unjust because, as shown by the IDFPR’s dispensary application grading debacle, scoring errors happen frequently in a process such as this. It is nearly certain that there were errors in this scoring process. If applicants are not permitted to know their scores, then it is nearly impossible for those applicants to determine if there were errors and then take steps to remedy them. Applicants are either going to need to take legal action blindly, or simply accept their unknown but insufficient scores. The end result will likely be that some Social Equity Applicants that deserved licenses will not receive them due to mistakes made outside of their control and/or knowledge.
Perhaps the Department and the AG have seen the lawsuits that have been filed against the IDFPR after the IDFPR released scores, and are hoping to avoid that same situation. That is a misguided hope. While some applicants will not take legal action because they do not have the means to do so (just further illustrating the injustice) others will feel like they have no choice but to file an action to at least obtain their score. So while trying to avoid litigation, the Department and the AG will create more voluminous and counterproductive litigation to obtain scores, followed by even further litigation over the merits of those scores.
Finally, the Department’s and the AG’s positions are counterproductive because they further feed the narrative that the Illinois cannabis industry is for insiders only. That was the perception of the Illinois medical marijuana industry, and the Cannabis Regulation and Tax Act was widely expected to change that. Yet the Department and the AG have consistently been unresponsive, unaccommodating, secretive, and even hostile to applicants seeking basic information such as scores. There is a growing sense that the cannabis licensing process is simply more of the same for Illinois. If the Department does not reconsider its position on releasing craft grow, infuser, and transportation scores, that sense is going to deepen further and the State is going to be embroiled in more litigation. Hopefully the Department and the AG reconsider their position, and if not, hopefully Illinois courts will provide applicants with the transparency they were routinely promised and deserve.
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