SB423 includes no shortage of offensive requirements for medical marijuana program participants. Of recent concern is the requirement that providers submit their fingerprints to the FBI and US Department of Justice and, in effect, risk self-incrimination despite the guarantees in the US and Montana Constitutions. The MTCIA has been consulting with attorneys and DPHHS in search of a solution. We explored the prospect of legal action as well as changes to the administrative process to avoid identification of providers.
Under the circumstances, neither avenue will work. The lawsuit brought by Jim Goetz on behalf of the MTCIA specifically addressed this issue in an effort to block the requirement, and the judge did not rule in our favor. Several representatives of the US Department of Justice testified on the witness stand that the fingerprints would not be used to initiate investigations, and without concrete evidence otherwise, the judge found no reason to assume the US government was in effect lying. Also, there is no real prospect of approaching the District Court a second time on the same issue and expecting different results. While we are appealing the decision, the Montana Supreme Court will not hear arguments for several months.
We also explored an administrative solution that would keep the FBI from being able to tell the purpose of the background check. Unfortunately, federal law requires that each request for a background check have its basis in a legal requirement (the FBI will not do background checks for no particular reason). As a result, the state is required to notify the FBI of the purpose for the request when the fingerprints are sent.
The process began with a request from DPHHS to the FBI to run background checks. The FBI verified that the request was based on a legal requirement in Montana state law, and issued the Department an “ORI number” (which stands for Originating Reporting Identifier number). The FBI then requires that each set of fingerprints contain the number on the fingerprint form. Representatives at DPHHS said they cannot submit the prints without the number on each form.
Several representatives at DPHHS have repeatedly told us that they do not believe those doing the background check will turn over any information for law enforcemnt purposes, and that is what the US Department of Justice swore on the witness stand when this matter was before Judge Reynolds. DPHHS even suggested that if the FBI really thought this was a problem, they would not cater to these requests in Montana or any other state where they currently do background checks such as Colorado.
So the bottom line is that providers do have to submit fingerprints, there is no prospect of a legal challenge in the short term, and we cannot hide the fact that these fingerprints are for medical marijuana provider background checks. So that is the situation.
We have heard from some parts of the state, in particular Yellowstone and Lewis & Clark counties, where local law enforcement has told providers they will not be able to take fingerprints before Oct 1. DPHHS has made the following suggestions:
For those in Yellowstone County, have your prints taken at the Sheriff’s Department in Laurel. The cost the $15.
For those in Lewis & Clark County, can have your prints taken at the MT Department of Justice Building, located at 303 N. Roberts, 4th floor in Helena.