Oregon Prescription Drug Monitoring Program v. United States Drug Enforcement Administration
Filing
60
OPINION AND ORDER signed on 2/11/2013 by Judge Ancer L. Haggerty. ACLU's Motion for Summary Judgment 27 is GRANTED, the PDMP's Motion for Summary Judgment 24 is DENIED AS MOOT, and the DEA's Cross Motions for Summary Judgment [40 and 42] are DENIED. (sp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
OREGON PRESCRIPTION DRUG
MONITORING PROGRAM, an agency
of the STATE OF OREGON,
Plaintiff,
Case No. 3:12-cv-02023-HA
OPINION AND ORDER
v.
UNITED STATES DRUG
ENFORCEMENT ADMINISTRATION,
an agency of the UNITED STATES
DEPARTMENT OF JUSTICE,
Defendant.
JOHN DOE 1, eta!.,
Plaintiffs-Intervenors,
v.
UNITED STATES DRUG
ENFORCEMENT ADMINISTRATION,
an agency of the UNITED STATES
DEPARTMENT OF JUSTICE.
Defendant in Intervention.
HAGGERTY, District Judge:
Plaintiff, the Oregon Prescription Drug Monitoring Program (PDMP) brought this action
for declarat01y relief against the United States Drug Enforcement Administration (DEA)
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pursuant to 28 U.S. C. § 2201 to determine its rights and obligations in complying with
administrative subpoenas issued by the DEA. The American Civil Liberties Union of Oregon,
Inc., John Does 1-4, and Dr. James Roe, M.D. (collectively "ACLU" or "intervenors"),
intervened in this matter pursuant to Federal Rule of Civil Procedure 24(a) over the objections of
the DEA in order to raise arguments regarding intervenors' protected health information and
Foutth Amendment rights. All patties have moved for summmy judgment. For the following
reasons, the ACLU's Motion for Summmy Judgment [27] is granted, the PDMP's Motion for
Summmy Judgment [24] is denied as moot, and the DEA's Cross Motions for Summary
Judgment [40 and 42] are denied.
BACKGROUND
In 2009, the Oregon legislature created the PDMP, an electronic database maintained by
the Oregon Health Authority to record infmmation about prescriptions of drugs classified in
Schedules IIelY under the federal Controlled Substances Act (CSA). 1 Or. Rev. Stat. (ORS)
431.962. The PDMP became fully operational in 2011. A phmmacy that dispenses a Schedule
II-IV prescription drug in Oregon must electronically repmt certain information regarding that
prescription to the PDMP including: the quantity and type of drug dispensed, identifying
information about the patient, and identifying information about the practitioner who prescribed
the drug. ORS 431.964. The "primmy purpose of the PDMP is to provide practitioners and
phmmacists a tool to improve health care," by providing health care providers with a means to
identify and address problems related to the side effects of drugs, risks associated with the
1
The CSA, 21 U.S. C. § 801 et seq., classifies drugs into five schedules. Schedule I
consists of substances for which. there is a high potential for abuse and no cunently accepted
medical use. Schedules II-V include drugs with an accepted medical use and with progressively
lower potentials for abuse.
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combined effects of prescription drugs with alcohol or other prescribed drugs, and overdose.
PDMP Fact Sheet, Wessler Dec!. Ex. B. "Approximately 7,000,000 prescription records are
uploaded to the system annually." !d.
Depending on the drug prescribed, the infonnation reported to PDMP can reveal a great
deal of information regarding a patiicular patient including the condition treated by the
prescribed drug. Schedule II-IV drugs can be used to treat a multitude of medical conditions
including AIDS, psychiatric disorders, chronic pain, drug or alcohol addiction, and gender
identity disorder.
Pursuant to Oregon statute, prescription monitoring information uploaded to the PDMP
constitutes "protected health information" and is not subject to disclosure except in limited
circumstances. ORS 431.966. A physician or pharmacist may access patient records in the
PDMP only if they "certifTy] that the requested information is for the purpose of evaluating the
need for or providing medical or phannaceutical treatment for a patient to whom the practitioner
or pharmacist anticipates providing, is providing or has provided care." ORS 431.966(2)(a)(A).
Relevant to this case, the PDMP may also disclose patient information "[p]ursuant to a valid
comi order based on probable cause and issued at the request of a federal, state or local law
enforcement agency engaged in an authorized drug-related investigation involving a person to
whom the requested information pe1iains." !d. at 431.966(2)(a)(C). The PDMP's public website
repeatedly references the privacy protections afforded prescription infmmation and informs
visitors that law enforcement officials may not obtain information "without a valid comi order
based on probable cause for an authorized drug-related investigation of an individual." See, e.g.,
Oregon PDMP, Frequently Asked Questions, (Januaty 31, 2014, 10:12 AM),
http://www.orpdmp.com/faq.html.
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The CSA empowers the Attorney General, and executive agencies acting pursuant to his
authority, with broad authority to issue administrative subpoenas to investigate drug crimes. 21
U.S.C. § 876. Pursuant to § 876(a) "the Attorney General may subpoena witnesses, compel the
attendance and testimony of witnesses, and require the production of any records (including
books, papers, documents, and other tangible things which constitute or contain evidence) which
the Attorney General finds relevant or material to" an investigation regarding controlled
substances. These administrative subpoenas are not self enforcing, and "[i]n the case of
contumacy by or refusal to obey a subpoena issued to any person, the Attorney General may
invoke the aid of any court of the United States within the jurisdiction of which the investigation
is carried on ... to compel compliance with the subpoena." Id. at§ 876(c). While there is no
penalty for failing to comply with a § 876 subpoena, failure to obey a court order enforcing the
subpoena "may be punished by the court as contempt thereof." Id
The DEA has sought to utilize § 876 subpoenas to obtain prescription records from the
PDMP. However, the PDMP has refused to comply with the administrative subpoenas on the
basis that to do so would violate Oregon law. In at least one instance, the DEA obtained judicial
enforcement of a§ 876 subpoena against the PDMP for the production of all Schedule II-IV
controlled substance prescriptions issued by a particular physician during the course of
approximately seven months. United States v. Oregon Prescription Drug lvfonitoring Program,
3:12-mc-00298 (D. Or. Aug. 27, 2012). In that matter, the magistrate judge found ORS
431.966's court order requirement to be preempted by § 876. However, the PDMP was not
provided with an opportunity to contest the validity of the subject administrative subpoena. The
State of Oregon complied with the court enforced subpoena in that matter, however, additional
subpoenas have since been issued to the PDMP and the State of Oregon continues to maintain its
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position that it cannot comply with such subpoenas absent a court order.
On September 11, 2012, the DEA issued an administrative subpoena to the PDMP
demanding the prescription records for an individual patient and on September 17, 2012, the
DEA issued another administrative subpoena to the PDMP demanding a summary of all
prescription drugs prescribed by two physicians. The PDMP objected to each subpoena on the
basis that disclosure of the requested information would violate Oregon law. Shortly thereafter,
the PDMP initiated this action for declaratory relief asking this court to detetmine whether the
Supremacy Clause of the United States Constitution and§ 876 preempt ORS 431.966.
The ACLU intervened in this matter pursuant to Federal Rule of Civil Procedure 24(a) in
order to raise arguments regarding intervenors' protected health infmmation and Fourth
Amendment Rights. The four John Does each utilize prescribed Schedule II-IV substances for
the treatment of various medical conditions. John Doe 1 is a retired CEO and currently takes two
Schedule II drugs to treat extreme pain caused by recuning kidney stones. John Doe 2, an
attorney, and John Doe 4, a medical student, have both been diagnosed with gender identity
disorder and utilize prescription testosterone, a Schedule III drug, for hormone replacement
therapy. John Doe 3 is a small business owner and takes alprazolam, a Schedule IV drug, to treat
anxiety and post-traumatic stress disorders as well as Vicodin, a Schedule III drug, as a pain
reliever. Each of the John Does considers his health infmmation to be private and is distressed
that the DEA might obtain his prescription inf01mation, and by extension information about his
medical conditions, without a warrant.
Doctor James Roe, M.D., is an internist who primarily treats geriatric and hospice
patients and as a consequence, prescribes more Schedule II-IV drugs than a typical physician. He
has been interviewed and investigated by the DEA in the past, and is concerned that his patients'
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prescription records have been accessed or may be accessed without a warrant. He asserts that
pressure from the DEA has resulted in changes to his prescribing practices.
STANDARDS
Summmy judgment is appropriate "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a). In this case, the parties agree on all material facts and the dispute is purely legal.
DISCUSSION
Each of the pmties has moved for summmy judgment. The DEA contends that § 876
preempts ORS 431.966's court order requirement pursuant to the Supremacy Clause of the
United States Constitution and that the PDMP should be ordered to comply with the DEA's
administrative subpoenas. Additionally, the DEA contends that intervenors do not have standing
to present their arguments concerning the Fomih Amendment, that their claims are not ripe, and
that they do not have a protected privacy interest in their prescription records. The PDMP
·contends that, at most, only ORS 431.966's probable cause requirement is preempted as § 876
subpoenas are not self-enforcing. Intervenors contend that the administrative subpoenas are
unlawful as they violate the Fourth Amendment.
A. Standing and Ripeness
The DEA contends that intervenors do not have standing to present their arguments
related to the Fourth Amendment. Intervenors contend that they do not need Article III standing
in accordance with Ninth Circuit precedent, and in any case, do have such standing.
This comi previously permitted the ACLU to intervene in this matter pursuant to Federal
Rule of Civil Procedure 24(a). There is no basis to reconsider that ruling here. Rather, the
question is whether Aliicle III erects any barriers to the justiciability of intervenors' arguments
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concerning the Foutih Amendment.
In the Ninth Circuit, courts "resolv[e] intervention questions without making reference to
standing doctrine." Portland Audubon Soc. v. Hodel, 866 F.2d 302, 308 n.l (9th Cir. 1989),
abrogated on other grounds by Wilderness Soc'y v. US. Forest Serv., 630 F.3d 1173 (9th Cir.
2011); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527-29 (9th Cir.l983). The Ninth
Circuit has "declined to incorporate an independent standing inquiry into our circuit's
intervention test," though the intervention test implicitly includes some standing analysis. Id.
Although not all circuits have reached agreement on this issue, the Ninth Circuit is not alone and
the question has not been resolved by the Supreme Court. Diamond v. Charles, 476 U.S. 54, 6869 (1986) (noting that the Courts of Appeals have reached different conclusions in determining
"whether a pmiy seeking to intervene before a District Court must satisfy not only the
requirements of Rule 24(a)(2), but also the requirements of Art. III").
Were intervenors pursuing claims wholly distinct from those of the PDMP, this court
might find cause to conduct a standing analysis. See e.g. San Juan County, Utah v. United
States, 503 F.3d 1163, 1171 (5th Cir. 2007) ("so long as there [is] Article III standing for the
original party on the same side of the litigation as the intervenor, the intervenor need not itself
establish standing"). However, intervenors pursue claims related to PDMP's claims.
The PDMP has sought declarat01y relief to dete1mine its rights and obligations in complying with
the DEA's administrative subpoenas. Before this court can determine how to resolve any conflict
between the PDMP's obligations under ORS 431.966 and administrative subpoenas issued
pursuant§ 876, the court must first determine that the DEA's issuance of the administrative
subpoenas is a constitutional exercise of its authority and that a conflict actually exists. Oregon
v. Ashcroft, 368 F.3d 1118, 1126 (9th Cir. 2004) (noting that the "CSA shall not be construed to
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preempt state law unless there is a 'positive conflict' between" federal and state law and that
"'federal courts must, whenever possible, ... avoid or minimize conflict between federal and
state law"') (quoting 21 U.S.C. § 903; United States v. Oakland Cannabis Buyers' Coop., 532
U.S. 483,502 (2001) (Stevens, J. concurring)); see also, Alden v. lvfaine, 527 U.S. 706,731
(1999) ("the Supremacy Clause enshrines as 'the supreme Law of the Land' only those Federal
Acts that accord with the constitutional design") (citing Printz v. United States, 521 U.S. 898,
924 (1996)). If the DEA's administrative subpoenas violate the Fomth Amendment as applied to
the PDMP, as intervenors contend, there is no conflict between ORS 431.966 and federal law.
This comt "has a Case or Controversy before it regardless of the standing of the intervenors." Id.
at 1172. The ACLU's arguments are merely an extension of those advanced by the PDMP
requiring this court to begin at the beginning and consideration of those arguments in no way
destroys the controversy already in existence. Accordingly, the cout1 concludes that intervenors
do not need standing to raise arguments concerning the Fomth Amendment.
The court also concludes that intervenors' claims are ripe for adjudication. "Whether
framed as an issue of standing or ripeness, the inquity is largely the same: whether the issues
presented are 'definite and concrete, not hypothetical or abstract." Wolfson v. Brammer, 616 F.3d
1045, 1058 (9th Cir. 2010) (quoting Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134,
1139 (9th Cir. 2000) (en bane)). Regardless of whether intervenors themselves are cunently
subject to investigation by the DEA2, it is clear that PDMP's rights and obligations must be
determined at this time. The DEA has sought, and continues to seek, the use of administrative
2
It is unclear when, if ever, the DEA believes a challenge brought pursuant to the Fourth
Amendment would be ripe. The DEA does not notify its targets of its investigations, and even if an
individual were prosecuted, it is uncertain whether the DEA would notify that individual regarding
the DEA's use of administrative subpoenas to gather evidence.
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subpoenas to obtain individuals' prescription records. As discussed above, in order to detennine
whether PDMP must comply with the DEA's administrative subpoenas, and whether a positive
conflict exists between § 876 and ORS 431.966, the court will first determine whether the
issuance of the subpoenas is a constitutional exercise of the DEA's authority. Accordingly, the
court must evaluate intervenors' claims at this time. The questions presented by this case are
"purely legal, and will not be clarified by further factual development." Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1985). Accordingly, those questions are now ripe
for adjudication.
B. Fourth Amendment
The Fomth Amendment provides protection against "umeasonable searches and
seizures." U.S. CONST. amend. IV. "[S]earches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se umeasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions." Katz v. United
States, 389 U.S. 347, 357 (1967). The Fourth Amendment does not protect against all searches
or seizures, rather it guards against searches and seizures of items or places in which a person has
a reasonable expectation of privacy. United States v. Ziegler, 474 F.3d 1184, 1189 (9th Cir.
2007); In re Gimbel, 77 F.3d 593, 599 (2d Cir. 1996) (holding that the Fomth Amendment does
not allow the use of an administrative subpoena where "a subpoena respondent maintains a
reasonable expectation of privacy in the materials sought by the subpoena").
The Fomth Amendment protects people, not places, and to invoke the protections of the
Fourth Amendment, a person must first show that they have "an actual (subjective) expectation
of privacy and, second, that the expectation be one that society is prepared to recognize as
'reasonable."' Katz, 389 U.S. at 361 (Harlan, J., concu11'ing).
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It is clear from the record that each of the patient intervenors has a subjective expectation
of privacy in his prescription information, as would nearly any person who has used prescription
drugs. Each has a medical condition treated by a Schedule II-IV drug and each considers that
information private. Doctor James Roe also has a subjective expectation of privacy in his
prescribing information. See Dec!. Dr. James Roe (describing his duty of confidentiality to his
patients and how law enforcement has made doctors, including himself, reluctant to prescribe
schedule II-IV drugs where medically indicated). By reviewing doctors' prescribing information,
the DEA inserts itself into a decision that should ordinarily be left to the doctor and his or her
patient. Because each of the individual intervenors has a subjective expectation of privacy, the
question becomes whether intervenors' subjective expectations of privacy are expectations that
society is prepared to recognize as reasonable.
There is "no talisman that dete1mines in all cases those privacy expectations that society
is prepared to accept as reasonable." O'Connor v. Ortega, 480 U.S. 709, 715 (1987). Rather,
courts must weigh "such factors as the intention of the Framers of the Fourth Amendment, the
uses to which the individual has put a location, and our societal understanding that certain areas
deserve the most scrupulous protection from government invasion." I d. (quoting Oliver v. United
States, 466 U.S. 170, 178 (1984)).
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 ACLU cites
compelling evidence demonstrating that a number of signers of the Declaration of Independence
and delegates to the Constitutional Convention were physicians trained at the University of
Edinburgh, which required its graduates to sign an oath swearing to preserve patient
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confidentiality. Baker Dec!.
~~
4-10. It is not surprising that privacy protections for medical
records have not only been placed in Oregon law, but are also enshrined in certain aspects of
federal law. See, e.g., Health Insurance P01iability and Accountability Act, Privacy Rule, 45
C.F.R. § 164.512 (providing protections for "protected health information").
-·
In Whalen v. Roe, the Supreme Court had occasion to consider the right to informational
privacy in prescription records under the Due Process Clause of the Fourteenth Amendment. 429
U.S. 589 (1977). While Whalen is not controlling in this case because the Comi did not reach
any claims raised pursuant to the Fourth Amendment, it is nevertheless instructive. In Whalen,
the Court considered whether New York's collection of prescription information in a
computerized database violated doctors' and patients' constitutionally protected privacy rights.
429 U.S. at 591. The Court noted that there are two types of privacy interests implicated by
prescription records: "One is the individual interest in avoiding disclosure of personal matters
and another is the interest in independence in making certain kinds of imp01iant decisions." I d.
at 699-600. New York's program could make "some patients reluctant to use, and some doctors
reluctant to prescribe, such drugs even when their use is medically indicated [such that] the
statute threatens to impair both [plaintiffs'] interest in the nondisclosure of private information
and also their interest in making imp01iant decisions independently." Id. at 600. Despite the fact
that the Court acknowledged that privacy rights were implicated, it ultimately concluded that
New York's prescription information program adequately safeguarded patients' and doctors'
inf01mational privacy rights under the Fomieenth Amendment. Id. The couti declined to address
the plaintiffs' Fourth Amendment arguments because the case did not "involve affirmative,
unannounced, narrowly focused intrusions into individual privacy during the course of criminal
investigations." Id. at 604 n.32.
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In Ferguson v. City of Charleston, the Supreme Court analyzed medical records under the
Foutth Amendment. 532 U.S. 67 (2001). In that case, a state hospital was conducting drug tests
of pregnant women and then providing the results of those tests to law enforcement. I d. at 72-75.
The Supreme Court noted that the "reasonable expectation of privacy enjoyed by the typical
patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared
with nonmedical personnel without her consent." !d. at 78. The Court found that "an intrusion
on that expectation of privacy may have adverse consequences because it may deter patients from
receiving needed medical care." Id. at 78 n.14 (citing Whalen, 429 U.S. at 599-600). The Couti
concluded that the "special need" exception to the warrant requirement was inapplicable to the
search because the "central and indispensable feature of the policy from its inception was the use
oflaw enforcement to coerce patients into substance abuse treatment." Jd. at 80.
The Ninth Circuit has also had occasion to evaluate whether patients and doctors have a
reasonable expectation of privacy in medical records protected by the F outih Amendment. In
Tucson Women's Clinic v. Eden, the Ninth Circuit evaluated an Arizona regulation that required
abmtion clinics to submit to warrantless inspections by the Arizona Department of Human
Services. 379 F.3d 531, 537 (9th Cir. 2004). The Ninth Circuit determined that the
administrative search exception to the Fourth Amendment which, in some circumstances, allows
warrantless searches of closely regulated businesses, was inapplicable to the searches authorized
by the Arizona regulations. Jd. at 550. The coutt determined that abortion services were not
sufficiently regulated to fall within the exception. Jd. More impmtantly, the coutt noted that "the
themy behind the closely regulated industry exception is that persons engaging in such industries,
and persons present in those workplaces, have a diminished expectation of privacy." !d. That
theory was inapplicable to abortion clinics, "where the expectation of privacy is heightened,
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given the fact that the clinic provides a service grounded in a fundamental constitutional liberty,
and that all provision of medical services in private physicians' offices canies with it a high
expectation of privacy for both physician and patient." ld. Accordingly, the Ninth Circuit held
that the statute and regulations were violative of the F omih Amendment. 3
In this matter, the comi easily concludes that intervenors' 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.' The prescription infonnation 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
3
Citing Whalen, the Ninth Circuit balanced five factors in weighing the govemmental
interest in obtaining information against the individual's privacy interest and found that the searches
also violated plaintiffs' infonnational privacy rights under the Fourteenth Amendment. 379 F.3d at
551-53. That balancing test is inapplicable in the context of the Fourth Amendment.
4
The DEA argues that because there are privacy protocols within the DEA, and risk of
public disclosure of prescription information is low, there is no violation of patients' privacy
interests. The Fomih Amendment was not designed to protect public disclosure of individuals'
private infonnation, but to protect people from govemment intrusion. The DEA also contends that
there is no reasonable expectation of privacy because the DEA can request records from individual
phatmacies. Whether or not such requests would conform with the Fourth Amendment is not
before the court and the DEA's ability to obtain limited prescription infmmation in a more
cumbersome manner is irrelevant to this comi's analysis of the administrative subpoenas at issue.
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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 ofF ourth Amendment protection. That this expectation of privacy in prescription
information is protected in ORS 431.966 and advetiised on PDMP's public website, makes that
expectation all the more reasonable.
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" undetmines any expectation of privacy. The DEA
relies on United States v. Golden Valley Elec. Ass'n, 689 F.3d 1108, 1115 (9th Cir. 20 12) and
contends that because the Fomih 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 Fomih 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 tetms, that the disclosure sought shall not be unreasonable.
ld. (quoting Reich v. 1'vfontana 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 petiaining 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 comi specifically
noted that "depending on the circumstances or the type of infotmation, a company's guarantee to
its customers that it will safeguard the privacy of their records might suffice to justify resisting an
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administrative subpoena." !d. 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.
lvfiller, 425 U.S. 435 (1976) (no expectation of privacy in bank records); Smith v. },Iaryland, 442
U.S. 735 (1979) (same for telephone numbers a person dials). In },;filler, the Supreme Court's
analysis turned largely on the fact that Miller "voluntarily conveyed" the infmmation 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 },;filler 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, Deivfassa 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 infmmation 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
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or to leave the state. This is not a meaningful choice. See, In reApplication of US. for an Order
Directing a Provider ofElech·onic Communication Service to Disclose Records to Government,
620 F.3d 304, 317 (3rd Cir. 201 0) (holding that cell phone users retain a reasonable expectation
of privacy in their location information because users have not voluntarily shared their
infonnation 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 comt does not reach
the issues raised pursuant to the Supremacy Clause.
CONCLUSION
For the foregoing reasons, the ACLU's Motion for Summary Judgment [27) is
GRANTED, the PDMP's Motion for Summmy Judgment [24) is DENIED AS MOOT, and the
DEA's Cross Motions for Summmy Judgment [40 and 42) are DENIED.
IT IS SO ORDERED.
DATED this
_!j day of February, 2014.
Ancer L. Haggerty
United States Judge
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