Challenge to Michigan's medical-marijuana law raises privacy concerns
January 11, 2011
John Agar, Grand Rapids PressMedical-marijuana proponents say confidentiality of patient records is at risk if the federal government can obtain state-compiled records as part of a federal drug investigation.
“It would set a pretty significant precedent against patient-privacy rights,” Kris Hermes, spokesman for California-based Americans for Safe Access.
“It's not just a problem in Michigan, it's all over the country.”
His group had planned to protest this morning outside of U.S. District Court in Grand Rapids, where the federal government's request was to be heard, but canceled when the hearing was postponed by a last-minute filing by Michigan Association of Compassion Clubs.
MACC filed an emergency brief to try to halt the federal government's access to confidential medical-marijuana records held by the state Department of Community Health. The U.S. Drug Enforcement Administration subpoenaed records as part of an investigation of seven people in the Lansing area.
The state, represented by Attorney General Bill Schuette, has refused to release the records without an order from a judge. The state also wants the judge to provide immunity against any potential civil or criminal action for releasing the records.
Traverse City attorney Jesse Williams, on behalf of MACC and “John/Jane Does 1 through 42,” asked to intervene, and stay proceedings. The hearing was postponed until Feb. 1.
He wrote: “It is highly likely that the DEA's subpoena will unwarrantedly reach not only into the confidential physician-patient records of the seven targets of the DEA's investigation, but also into 35 other physician-patient confidential records that have nothing to do with the DEA's case. DEA's subpoena also asks DCH to 'give testimony' about the records of the 42 potential medical (marijuana) patients at issue in this case."
He said that confidentiality guarantees written into the law, approved by 63 percent of votes in 2008, led patients and providers to provide information.
The government says it is only looking for records linked to its investigation.
Williams contends the DEA is on a “fishing expedition,” and said Schuette should have defended the law's confidentiality provisions.
Schuette has been an outspoken opponent to medical marijuana, which Williams said affected his decision.
While state voters backed the use of medical marijuana, the drug remains illegal under federal law, which supersedes state law.
Schuette's office wrote in court documents that it recognizes that it has to comply with a valid court orders to provide information.
“Accordingly, DCH will comply with a valid order from this court requiring DCH to comply with the DEA subpoena. The order should also make clear that, pursuant to the Supremacy Clause of the U.S. Constitution, DCH, its employees and agents will be immunized from liability for providing information that is confidential” under the medical-marijuana law.
The Press left a request for comment with Schuette's office.
The DEA wants “copies of any and all documents, records, applications, payment method of any application for Medical Marijuana Patient Cards and Medical Marijuana Caregiver cards and copies of front and back of any cards located for the seven named individuals”
The names of the seven are redacted in court records.
Williams, the attorney for the compassion clubs and the 42 seeking to be respondents in the legal action, said he spoke with both the federal and state attorneys asking for their consent to intervene in the proceedings, but at this point has not won approval. He asked for the stay to further research his clients' claims, defenses and grounds for intervention.
He said his clients legal interests “will not be adequately represented by the existing parties.”
Americans for Safe Access is considering joining the legal action.