Bill would require probable cause for police access to people’s prescription records

DENVER – A bill under consideration in the Colorado Legislature would make it harder for law enforcement agencies to gain access to Coloradans’ prescription drug information.

Senate Bill 32 would require Colorado law enforcement agencies and regulatory boards to have a judge or neutral third party approve a warrant backed by a sworn affidavit or testimony before they can access the state’s prescription drug monitoring program. The bill was proposed by Sen. Michael Merrifield, a Democrat from El Paso County.

The state’s program is aimed at mitigating the abuse or misuse of prescription drugs. Pharmacies and doctors are required to upload prescription information for all Schedule II-V drugs prescribed and distributed to patients into the program’s database each day. The bulk of prescription drugs fall under those categorizations.

In Colorado, the law currently requires the requesting agency or board to prove that the information is related to a specific “practitioner, patient or pharmacy” amid an ongoing “bona fide investigation.”

But Coloradans could still have their private information and past prescriptions shared with law enforcement agencies that fill out an administrative subpoena which does not go before independent court officials before it is issued by the agency.

As revealed by a five-month investigation last August by Denver7’s Washington bureau, Scripps News, Colorado was one of 31 states that allowed law enforcement and regulatory boards to access that private consumer information without probable cause.

The Scripps News investigation uncovered an incident in Utah in which local police investigating the theft of drugs from an ambulance accessed the private prescription records of all 480 employees of the United Fire Authority of Salt Lake County. None of the employees were suspects, no court approved the search and no probable cause ever existed that any of the employees were involved in the theft.

Two of the employees were eventually charged after police used the information they obtained, though their charges were not related to the theft and were eventually dropped altogether.

Utah auditors later found that warrantless access to the database “may have resulted in questionable use” of the database by other law enforcement agencies in more than half the sampled cases.

The Scripps News investigation found that in 2014-15 alone, law enforcement nationally had accessed at least 344,921 Americans’ prescription histories in the 31 states that don’t require a warrant or court order.

Utah has since changed its law to require warrants be approved before the information is released.

Sen. Merrifield told Scripps Monday that his bill is aimed at providing better protections for Coloradans, and simply requires law enforcement agencies and regulatory boards to establish probable cause for the search.

“We need to protect Coloradans’ constitutional right to privacy,” he said. “It simply isn’t right that any law enforcement official or regulator could access private health records without any form of judicial oversight. As technology advances, and these records become digitized, Colorado needs to make sure investigations into people’s prescription health records are done so with a judge’s approval, just like any investigation into any other personal database.”

The bill is scheduled for its first hearing in the Senate Judiciary Committee Feb. 1.

Scripps News’ senior national investigative correspondent Mark Greenblatt contributed to this report.