Wells House photos taken during police search sealed until further notice

Washington County judge rules records could violate patient confidentiality but didn't grant other relief sought by attorneys for Hagerstown drug and alcohol treatment facility

September 07, 2012|By DON AINES |

A Washington County Circuit Court judge on Friday ordered that photos of patients taken during a police search of a Hagerstown drug and alcohol treatment facility be turned over to the court, citing issues of patient confidentiality.

Circuit Judge John H. McDowell ordered that the patient photos and photos of white boards inside Wells House be held by the court and sealed until further order by the court.

McDowell’s actions came during a hearing on a motion by Wells House attorneys seeking a temporary restraining order against the city and police department for items seized during an Aug. 30 search related to an investigation of an alleged assault.

Photographing and identifying the residents during the search could violate the confidentiality protections they have under federal civil rights law and the Health Insurance Portability and Accountability Act, McDowell ruled. The same applied to photos of the white boards, which could contain confidential information relating to patients, he said.


“These items should not be disseminated any further than they have been disseminated,” McDowell said.

Photographing and identifying the patients could be “determined to be a record,” and thus confidential under the law.

“There is no basis under any law we can find to allow patients in a health care facility to be photographed,” Wells House attorney Ira C. Cooke told McDowell.

However, McDowell did not grant other relief sought by Cooke and fellow Wells House attorney Marianne Morris, including that police return the hard drive for a video surveillance system and photos taken of staff during the search.

While photographing the staff could have been “well beyond the scope of the search warrant ... identifying the staff is not something that could irretrievably damage them or Wells House,” McDowell said.

The video “shows every single person over a 25-day period who has entered or left the Wells House,” and could also violate their confidentiality rights, Cooke told McDowell.

Hagerstown City Attorney Bill Nairn said police were searching for evidence of an assault, not patient records. The photos of the patients and staff would help police in identifying who they were seeing on the video surveillance seized in the search.

It was necessary to seize the hard drive because the surveillance system did not have tapes or discs that could be examined separately, Nairn said.

“A police officer has a right in the course of his job to ask (people) for their identification,” Nairn said. He asked why that would be any different because they were residents of Wells House.

“State and federal law,” McDowell answered.

Wells House is a residential and outpatient treatment facility for substance abuse care and treatment, according to the petition, which also sought to quash the search warrant and have the seized property returned to Wells House.

Specifics of the assault investigation, including the names of the alleged perpetrator and victim, were not discussed during Friday’s arguments. Cooke did say that Hagerstown police sent two officers to pick a suspect up in Baltimore.

The warrant was signed by District Judge R. Noel Spence on Aug. 29, but the affidavit police submitted for the warrant is sealed for 30 days. Cooke told McDowell that, as a circuit court judge, he could unseal the affidavit.

The motion for the restraining order said the search warrant was defective “as it incorrectly identified the evidence to be seized and the basis for the criminal investigation,” but McDowell said it appeared to be a valid warrant signed by a judge.

“We may end up suing the city and the police department in federal court,” if the court did not issue a restraining order, Cooke said at one point.

After McDowell made his ruling, Cooke told the judge he would like to schedule a hearing for a preliminary restraining order within the next two weeks.

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