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Md. high court upholds subpoena of overdose data from Baltimore fire department

Decision was sealed for 11 months

A Baltimore grand jury may subpoena the city’s fire department for nearly 18 months’ worth of opioid overdose response records as part of an investigation into illegal drug distribution in Baltimore, Maryland’s top court ruled in a recently unsealed decision that pitted the city’s chief prosecutor against its mayor and city council.

The Court of Appeals held that the grand jury’s broad request for records violated neither the constitutional prohibition on unreasonable searches nor a Maryland law designed to protect the confidentiality of patient medical records. The court said disclosure of the records sought would be minimally intrusive on patients and justified by the state’s compelling interest in curtailing the opioid epidemic.

The court rendered its decision on June 10, 2021, but ordered it sealed in light of the sensitivity of the grand jury’s investigation. The ruling was unsealed on May 13, as ordered by the high court.

During the interim, the city sought U.S. Supreme Court review of the Court of Appeals decision. In January, the justices without comment denied the city’s request for review, which was made under seal.

The subpoena, which the grand jury sought at the Baltimore City state’s attorney’s request, required the fire department to provide the dates and locations of each of its overdose responses between Jan 1, 2017, and June 1, 2018, as well as patients’ name, gender and birth date. The subpoena also sought the phone number of the patient or person who called for the emergency aid.

City leaders sought to quash the subpoena as unconstitutionally broad, because it did not target a specific person or crime, and in violation of Maryland’s Health-General Article, which requires emergency personnel to keep patient records confidential. The city also argued that disclosing the records would discourage drug users from seeking medical help for fear their names would be provided to law enforcement.

The Maryland attorney general’s office and city prosecutors countered that the scope of the information sought was constitutionally reasonable and necessary to enable investigators to find and arrest illegal-drug distributors.

The Court of Appeals agreed with the prosecution, saying the subpoena was not overly broad but constitutionally targeted at specific information in the fire department’s possession and was limited to a clearly defined time period.

“We see no indication that the grand jury subpoena is a ‘random blanket search’ or that incorrect records may be searched and seized accidentally due to lack of particularity in the subpoena,” Judge Joseph M. Getty wrote for the high court. “The very particularities of the subpoena set it apart from an unrestrained, entirely blind search for evidence. It is self-evident that issuing a subpoena for opioid overdose data is a logical and strategic method to discover evidence of illicit drug distribution networks.”

The high court added that the city’s concerns about discouraging people from seeking medical help in drug overdose cases is misplaced in light of the Good Samaritan provision of the state’s Criminal Procedure Article, which prohibits prosecution of drug users seeking medical help and those calling for emergency assistance on their behalf.

Baltimore Solicitor James L. “Jim” Shea, the city’s chief lawyer, said in a statement Wednesday that “we respectfully disagree with the Court of Appeals’ ruling that the Fourth Amendment allows grand juries to search an entire city’s worth of medical records without individualized suspicion.”

“We also respectfully disagree with the Court of Appeals’ interpretation of Maryland Code, Health-General Article, Section 13-3602(e),” Shea added. “We believe that this provision was intended to prevent law enforcement from using emergency medical records to criminally investigate overdose victims, because the General Assembly did not want overdose victims to hesitate before calling 911. We hope that subsequent legislative enactments will clarify that the General Assembly meant exactly what it said when it prohibited the use of reported overdose emergency record information in criminal investigations or prosecutions.”

Shea also called it “unfortunate that the Supreme Court did not choose to review this matter.”

The office of Baltimore City State’s Attorney Marilyn J. Mosby did not have an immediate response Wednesday to the Court of Appeals decision.

In its 7-0 ruling, the court affirmed a Court of Special Appeals decision that reinstated the subpoena after it had been quashed by a Baltimore circuit court judge who had agreed with the city.

The Maryland attorney general’s office, which argued in favor of the subpoena on appeal, declined to comment on the high court’s ruling.

The Court of Appeals rendered its decision in In Re: Special Investigation Misc. 1064, No. 20 September Term 2020.