D.Or.: Reasonable expectation of privacy in prescription records, and the third party doctrine does not apply to them

There is a reasonable expectation of privacy in prescription records, and the third party doctrine does not apply such that the information can be obtained by mere administrative subpoena. Oregon Prescription Drug Monitoring Program v. United States DEA, 998 F. Supp. 2d 957 (D. Ore. 2014):

In this matter, the court easily concludes that interveners’ subjective expectation of privacy in their prescription information is objectively reasonable. Although there is not an absolute right to privacy in prescription information, as patients must expect that physicians, pharmacists, and other medical personnel can and must access their records, it is more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records.4 The prescription information maintained by PDMP is intensely private as it connects a person’s identifying information with the prescription drugs they use. The DEA attempts to draw a distinction between medical records and prescription information in order to distinguish the present case from Tucson Women’s Clinic’s conclusion that “all provision of medical services in private physicians’ offices carries with it a high expectation of privacy.” 379 F.3d at 550. This distinction is very nearly meaningless. By obtaining the prescription records for individuals like John Does 2 and 4, a person would know that they have used testosterone in particular quantities and by extension, that they have gender identity disorder and are treating it through hormone therapy. It is difficult to conceive of information that is more private or more deserving of Fourth Amendment protection. That this expectation of privacy in prescription information is protected in ORS 431.966 and advertised on PDMP’s public website, makes that expectation all the more reasonable.

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The DEA contends that even if intervenors have a reasonable expectation of privacy in their prescription records, the DEA may still utilize administrative subpoenas to obtain the records and that the “third-party doctrine” undermines any expectation of privacy. The DEA relies on United States v. Golden Valley Elec. Ass’n, 689 F.3d 1108, 1115 (9th Cir. 2012) and contends that because the Fourth Amendment’s strictures are relaxed in the context of administrative subpoenas, that the DEA should be able to obtain the prescription information without a warrant. In Golden Valley Elec. Ass’n, the Ninth Circuit discussed the Fourth Amendment’s limited protections as applied to administrative subpoenas. The court noted that:

It is sufficient for Fourth Amendment purposes if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.

Id. (quoting Reich v. Montana Sulphur & Chemical Co., 32 F.3d 440, 448 (9th Cir. 1994)).

In Golden Valley, the Ninth Circuit upheld the DEA’s use of administrative subpoenas to obtain electric company records pertaining to electricity consumption at three addresses. In so holding, the court noted that a “customer ordinarily lacks a reasonable expectation of privacy in an item, like a business record, in which he has no possessory or ownership interest.” Id. at 1116 (quoting United States v. Cormier, 220 F.3d 1103, 1108 (9th Cir.2000)). The court specifically noted that “depending on the circumstances or the type of information, a company’s guarantee to its customers that it will safeguard the privacy of their records might suffice to justify resisting an administrative subpoena.” Id. Here, it is clear that the information sought by the DEA is relevant to its investigations, but the question is whether the use of an administrative subpoena to obtain the information sought is reasonable. The prescription records at issue here are entirely unlike electric company records in which an individual lacks a reasonable expectation of privacy. Much like the information safeguarded in Tucscon Women’s Clinic, the prescription records here are protected by a heightened privacy interest rendering the use of administrative subpoenas unreasonable.

Lastly, the DEA contends that intervenor-plaintiffs expectation of privacy is unreasonable pursuant to the “third party doctrine.” Under that theory, an individual does not have a reasonable expectation of privacy in information held by a third party. See e.g., United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) (no expectation of privacy in bank records); Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (same for telephone numbers a person dials). In Miller, the Supreme Court’s analysis turned largely on the fact that Miller “voluntarily conveyed” the information contained in the bank records to the bank and in Smith, the court made the same determination for a person dialing telephone numbers.

However, this case is markedly different from Miller and Smith for two reasons. The first is that the PDMP’s records are “more inherently personal or private than bank records,” and are entitled to and treated with a heightened expectation of privacy. Golden Valley Elec. Ass’n, 689 F.3d 1116. See, DeMassa v. Nunez, 770 F.2d 1505 (9th Cir. 1985) (attorney’s clients have reasonable expectation of privacy in their legal files even though kept and maintained by attorney). Secondly, patients and doctors are not voluntarily conveying information to the PDMP. The submission of prescription information to the PDMP is required by law. The only way to avoid submission of prescription information to the PDMP is to forgo medical treatment or to leave the state. This is not a meaningful choice. See, In re Application of U.S. for an Order Directing a Provider of Electronic Communication Service to Disclose Records to Government, 620 F.3d 304, 317 (3rd Cir. 2010) (holding that cell phone users retain a reasonable expectation of privacy in their location information because users have not voluntarily shared their information with the cellular provider in any meaningful way).

Because the court concludes that the DEA’s use of administrative subpoenas to obtain prescription records from the PDMP violates the Fourth Amendment, the court does not reach the issues raised pursuant to the Supremacy Clause.