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Police ordered to return items seized from drug-treatment facility

October 01, 2012|By DON AINES | dona@herald-mail.com

A Washington County Circuit Court judge has ordered that items seized by Hagerstown police during a search of Wells House be returned to the drug-treatment facility pending a hearing on a preliminary injunction.

Judge John H. McDowell on Friday ordered that “all books, documents, records, photographs, equipment, machinery, recording devices, and any other items and materials, including those that were turned over to the Clerk of Court and ordered to be sealed, shall immediately be returned to Wells House, Inc.”

Wells House, a residential and outpatient treatment facility for substance abusers, was searched by police Aug. 30 in connection with an investigation of an alleged assault. The treatment center’s attorneys, Ira Cooke and Marianne Morris, were in court Sept. 7 seeking a temporary restraining order and the return of items taken in the search.

At the end of that hearing, McDowell ordered some items taken by police, including photos of patients and white boards inside the facility, be turned over to the court and sealed pending a further order of the court.

However, McDowell did not at the time grant other relief sought by Wells House, including a hard drive for a video surveillance system and photos of the staff.

His amended temporary restraining order, for the time being, returns all seized items to Wells House.

The Wells House attorneys argued that, since the residents are patients, the photos violated confidentiality provisions of federal statutes, including the Health Insurance Portability and Accountability Act.

“Not only do we want the originals back, but any derivative uses,” Cooke said Monday.

That includes disclosure of any person or agencies with whom the police might have shared the information in one form or another, he said.

The items had not been returned by the city as of Monday afternoon, Cooke said.

“This matter is still pending regarding any permanent injunction,” Hagerstown City Attorney Bill Nairn said Monday.

Nairn argued at last month’s hearing that police have a right in the course of their job to ask people for their identification in an investigation.

McDowell wrote that federal statutes “provide that disclosure of patient information related to treatment in a drug/alcohol treatment facility is strictly prohibited.”

“The relevant case law makes it clear that the statute is to be interpreted broadly,” McDowell wrote.

That includes names, photos and other information that could identify the people as patients, except with their consent or a court order showing good cause, he wrote.

The Hagerstown Police Department had the burden of showing good cause for the disclosure of the records, McDowell wrote.

“The next question to be crossed is the question of damages,” Cooke said Monday. “We will be seeking monetary damages.”

A hearing on the Wells House request for a preliminary injunction has not been scheduled, Cooke said.

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