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Last week, on February 11th, a federal court in Oregon ruled that patients have a reasonable expectation of privacy concerning their medical records and that administrative subpoenas could no longer be used to obtain patient records. Specifically, U.S. District Court Judge Ancer L. Haggerty held that:
"it is more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records."
While the case Oregon Prescription Drug Monitoring Program v. Drug Enforcement Administration stems from the DEA's repeated use of administrative subpoenas to obtain drug prescription records on patients and physicians, it may have important implications for medical marijuana patients who have been subjected to the same kind of privacy violations.
In his ruling, Judge Haggerty cites the long history of protecting patient records:
"Medical records, of which prescription records form a not insignificant part, have long been treated with confidentiality. The Hippocratic Oath has contained provisions requiring physicians to maintain patient confidentiality since the Fourth Century B.C.E."
The district court ruling, which holds that the DEA's use of administrative subpoenas to obtain prescription records "violates the Fourth Amendment," is not yet binding outside of Oregon, but it represents a significant push-back to privacy abuses by the Obama Administration and could soon become a landmark decision if the case is appealed.
Over the past few years, officials in multiple medical marijuana states have been subpoenaed to turn over patients records, including in California, Michigan, and Oregon.
In January 2011, the DEA subpoenaed the records of seven Michigan medical marijuana patients and, although the state had strong privacy protections against such invasive federal subpoenas, Michigan Attorney General Bill Schuette worked to eviscerate those laws and willingly handed over the records.
In October 2012, the DEA subpoenaed patient records from all of the medical marijuana patients registered in Mendocino County's cultivation program. After a year of refusing to comply with the subpoena, the county agreed in October 2013 to hand over some information to the federal government, though it was never revealed how much or what information was disclosed.
Oregon medical marijuana patients have also had to contend with similar invasions of privacy. As far back as 2007, the federal government tried to obtain the medical records of 17 patients registered in the Oregon Medical Marijuana Program (OMMP). The OMMP successfully fought off the grand jury subpoena and, until November 2012, patients had been protected from such abuses. Figuring that subpoenas would no longer work in Oregon, the DEA got a warrant for:
"[T]he names, addresses, telephone numbers, birthdates, Oregon Driver's License numbers or other Government Issued ID number for Patients, Growers and Caregivers in the Oregon Medical Marijuana Program database or files."
The OMMP held out until April of last year, at which point it turned over records to the DEA.
While last week's ruling may not stop federal warrants such as the one issued in 2012 for Oregon medical marijuana patients records, it may end further administrative subpoenas like the ones served on officials in California and Michigan, and will certainly add to the ammunition used by advocates and attorneys fighting these kinds of disclosures across the country.