Seizure of Rush Limbaugh's Medical Records Violates Florida's Constitutional Right of Privacy, ACLU Tells Court

February 17, 2004

FOR IMMEDIATE RELEASE

PALM BEACH, FL -- Saying Palm Beach County officials violated Florida's constitutional right of privacy and state law when seizing Rush Limbaugh's medical records, the American Civil Liberties Union of Florida today filed a friend-of-the-court brief in partial support of the conservative radio commentator, who is the subject of an ongoing criminal investigation involving alleged ""doctor-shopping.""

The ACLU told the state appeals court that its interest in the case is to defend "every Floridian's right to privacy by ensuring that the state is required to comply with carefully crafted procedural protections required by the Constitution and delineated by the Legislature."

"I hope the courts and the public can look beyond the celebrity status of the central figure in this case to the legal principles that protect everyone's privacy," said Howard Simon, Executive Director of the ACLU of Florida.  "While this case involves the right of Rush Limbaugh to maintain the privacy of his medical records, everyone has a stake in the outcome. The precedent set in this case will impact the security of medical records and the privacy of the doctor-patient relationship for every person in Florida."

In its 20-page brief, filed with the Fourth District Court of Appeal, the ACLU argues the Office of the State Attorney in Palm Beach County infringed on Florida's constitutional right of privacy when it failed to follow well-established protocol, mandated by law, when confiscating Limbaugh's medical files. 

On November 25, state law enforcement officials seized Limbaugh's medical records as part of a criminal investigation to determine whether Limbaugh illegally obtained prescriptions for pain medication from several doctors. Although officers obtained a search warrant to seize Limbaugh's medical records, the ACLU argues that a warrant fails to meet constitutional and statutory requirements necessary to preserve the right of privacy. 

In its brief, the ACLU argues that law enforcement officers violated state law by using the more intrusive search warrant process to seize Limbaugh's medical records, rather than by obtaining a subpoena through the proper procedures outlined in Florida Statute § 395.3025. The state statute requires law enforcement officers to notify the person whose medical records they seek to obtain and to give that person the opportunity to object before the records are seized. The law also gives a judge the authority to release only the information that is necessary for the investigation and to control the use or dissemination of those records. The statute was passed by the Florida Legislature to specifically address heightened concerns about medical privacy. 

In Limbaugh's case, however, law enforcement officers obtained a search warrant ex parte (without notifying him or giving him the opportunity to object). In addition, the warrant permitted officers to have access to all of his medical records, not just those relevant to the state's investigation, and there was no limit on how the state could use -- or misuse -- the other information about treatments or conditions that was not related to the criminal investigation. 

"There is simply no authority that allows the state to ignore the law," said Ft. Lauderdale attorney Jon May, who is serving as counsel for the ACLU. "Law enforcement officers are essentially on a fishing expedition, searching through private, highly sensitive medical records, for whatever they can get their hands on, regardless of whether the information contained in those records is even relevant to their on-going investigation.""

""When wielded by the state, a search warrant does not merely cut through a patient's privacy to obtain the information the state claims it needs, it destroys the patient's constitutionally protected right of privacy as well," May explained.  

In October, Limbaugh checked himself into a rehabilitation clinic after telling listeners on his radio program that he is addicted to painkillers. The ACLU has long advocated the need for a viable public health approach to address illegal drug use. Criminal prosecution is the government's primary weapon to stamp out illicit drugs in the "War on Drugs." However, the ACLU has maintained that the so-called "War on Drugs" has led to a dramatic increase in the nation's prison population, while doing little to curb the nation's drug trade. The organization believes there are better ways, other than criminal prosecution and incarceration, to address drug abuse that will ultimately lead to a healthier, freer and less crime-ridden society.

The case is Rush Limbaugh v. State of Florida, No. 4D03-4973. In addition to May, ACLU of Florida Legal Director Randall Marshall, Prof. Michael Masinter of Nova Southeastern Law School and Ft. Lauderdale attorney Robert Buschel are counsel of record.  

The ACLU's brief is online at /cpredirect/15035

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