Oklahoma AG to agree to stipulation: Police won’t have access to patients’ information on medical marijuana licenses while lawsuit is pending

The state plans to agree to a stipulation preventing enforcement of a mandate that could give police access to that information, giving lawmakers time to repeal the provision, the Attorney General’s Office said.

On Aug. 6, 11 patients and the Tulsa Higher Care Clinic Inc. filed a lawsuit challenging a provision of Senate Bill 1030, citing “an ambiguity” in the legislation that puts patients at risk of privacy violations and adverse interactions with law enforcement.

SB 1030, which is to take effect by Aug. 30, has a clause indicating that the Oklahoma State Department of Health shall make available “all information” shown on marijuana licenses through the Oklahoma Law Enforcement Telecommunications System, or OLETS.

On Wednesday, Tulsa attorney Ron Durbin announced that the state would agree to a joint stipulation blocking enforcement as long as the case is open and said the move will give the Legislature time to “fix your horrendous mistake” during its next session.

Alex Gerszewski, director of communications for Attorney General Mike Hunter’s office, said Thursday that “we are hopeful to have a stipulation finalized and filed by early next week.”

Gerszewski did not provide further details on the stipulation’s possible contents or say what the agency’s stance will be in its response to the claims in the lawsuit, which names the Oklahoma Medical Marijuana Authority, the state Health Department, OLETS and the Oklahoma Department of Public Safety as defendants.

The Health Department oversees the OMMA, which released a statement Aug. 6 indicating awareness of “potential discrepancies” in the bill, whose primary Senate author was Sen. Lonnie Paxton, R-Tuttle. In the statement, the OMMA said it welcomed direction on the matter and asserted that it would not share information with any other agency or the OLETS platform until a judge makes a ruling.

Rep. Scott Fetgatter, R-Okmulgee, told the Tulsa World he and House Majority Floor Leader Jon Echols, R-Oklahoma City, have agreed on a solution that likely will render the lawsuit moot. Echols told the World earlier this month that nothing in the current version of SB 1030 requires the Health Department or OMMA to transfer patient information to OLETS, but he acknowledged that the wording was “very confusing.”

“We have an agreement that we will repeal that language next session, and so I encourage the delay of implementation until the Legislature can convene and we can repeal that language,” Fetgatter said Thursday. He added that Paxton is also on board with the change.

All three lawmakers were members of the legislative Medical Marijuana Working Group that met last summer to draft language for implementation of State Question 788, which a majority of voters supported in the June 2018 election.

Durbin said in the lawsuit that the provision currently does not clearly make distinctions between business licenses and patient licenses despite other portions of SB 1030 that prioritize patient privacy. He argued that enforcement would brand patient cardholders with a “scarlet letter” in Oklahoma because it would increase the likelihood of “disparate treatment” during encounters such as traffic stops.

DPS spokeswoman Sarah Stewart has said the agency would be the “storehouse” for the data referenced in SB 1030 if the law were to be enforced as written.

Durbin said Thursday that while he was pleased about the stipulation, it was “concerning” that the dispute got to the point of litigation. He also said he wanted lawmakers to involve patients and businesses more in the process rather than government agencies that he said either opposed cannabis legalization outright or support restrictive legislation.

“We hope this serves as a lesson to the state of Oklahoma, and more specifically the Legislature, that patients and businesses alike will fight to protect the undoing of State Question 788,” Durbin said.