In a decision with frightening ramifications for the protection of a person’s most intimate medical records, the Georgia Supreme Court ruled earlier this month that a person’s medical records are no longer considered “private papers” and thus are not protected from government search warrants. This ruling came despite language in Georgia law that exempts from the reach of a search warrant “the private papers of any person.” Of course, a properly executed search warrant may always be used to reach any items, including medical records, that constitute ”instrumentalities of a crime,” but this recent court decision opens the door to law enforcement gaining access to personal medical records that are not themselves evidence of crimes.
This ruling comes as the federal government is moving to increase its involvement in and control over the country’s medical system; and as Washington increases pressure on state governments, physicians and hospitals to use and maintain electronic medical records. This makes accessing those records by government agencies even easier than at present. Moreover, neither the massive “Obamacare” law signed earlier this year by the President, nor other legislative provisions dealing with medical records (such as were contained in the “stimulus” package signed also earlier this year), establish the one provision essential to maintaining the privacy of individuals’ medical records — affirming in law that the individual himself or herself is the owner of their own medical records.
In Georgia now, as a result of this recent Supreme Court ruling, the only protection a person has against the government gaining surreptitious access to their personal medical records, is to keep them in their personal possession — a condition that is obviously unrealistic and impossible to maintain. Unless the legislature changes the law and makes explicitly clear that a person’s medical records (including those that might be located somewhere else, such as in their doctor’s office) constitute “private papers” and are “personal property,” Georgia citizens’ personal medical records will have virtually no protection from surreptitious access by government agents.