By Bob Brewin
May 15, 2013
This story was updated at 4:12 p.m.
A lawsuit filed in California accuses the Internal Revenue Service of illegal seizure of 60 million electronic health care records belonging to 10 million Americans.
The suit filed in the Superior Court of San Diego by Robert Barnes, a Malibu lawyer representing a corporate client named John Doe Co., charged that IRS agents raided the company on March 11, 2011, in a tax case and seized the medical records.
Barnes alleged in the suit -- which was filed March 11, 2013, and surfaced Wednesday -- that the “medical records contained intimate and private information of more than 10,000,000 Americans, information that by its nature includes information about treatment for any kind of medical concern, including psychological counseling, gynecological counseling, sexual or drug treatment, and a wide range of medical matters covering the most intimate and private of concerns.”
The suit said the 15 IRS agents involved in the raid did not have a search warrant or subpoena for the medical records which “may concern the intimate medical records of every state judge in California, every state court employee in California, leading and politically controversial members of the Screen Actors Guild and the Directors Guild, and prominent citizens in the world of entertainment, business and government, from all walks of life."
Barnes said the record seizure at the John Doe Company was so massive it affects "roughly one out of every twenty-five adult American citizens.”
This seizure, the suit charged, violated privacy rules enshrined in the 1996 Health Insurance Portability and Accountability Act, known as HIPAA.
Barnes said in his suit that IRS agents “stole” the medical records in an investigation into a "tax matter involving a former employee of the [unnamed] company.”
The suit makes it clear that the seized medical records were in an electronic format. "Despite knowing that these medical records were not within the scope of the warrant, defendants threatened to 'rip' the servers containing the medical data out of the building if IT [information technology] personnel would not voluntarily hand them over,” Barnes alleged.
Even though the agents knew that the records they were seizing were not included within the scope of the search warrant, they “searched and seized the records without making any attempt to segregate the files from those that could possibly be related to the search warrant. In fact, no effort was made at all to even try maintaining the illusion of legitimacy and legality,” Barnes said in his suit.
Barnes said executives of the company and IT personnel warned the IRS agents that the medical records were “privileged” under HIPAA. He said the IRS agents “ignored and discarded each of these warnings, ignored their own published and public-reliant rules and governing ethical requirements, and ignored the limitations of the court's search warrant authorization, seizing the records under threat of destroying company property."
Barnes said the IRS search warrant only “authorized the seizure of financial records related principally to a former employee of the company; it did not authorize any seizure of any health care or medical record of any persons, least of all third parties completely unrelated to the matter.”
Despite this stricture, Barnes charged the agents “seized personal mobile phones, including all the data and information on those phones, without any employing the proper and procedurally correct screening methods to protect private and privileged information, all of which was completely unapproved by the search warrant."
When the agents finished their raid, Barnes said they then used the John Doe Company facilities to relax, eat and watch sports on television. “Adding insult to injury, after unlawfully seizing the records and searching their intimate parts, defendants decided to use John Doe Company's media system to watch basketball, ordering pizza and Coca-Cola, to take in part of the NCAA tournament, illustrating their complete disregard of the court's order and the Plaintiffs' Fourth Amendment rights,” the suit said.
The suit said the IRS refused to disclose which agents participated in the raid, who saw the medical records, and where the records are today. It seeks $25,000 in damages "per violation per individual" whose records were compromised.
The suit also asked the court to order the IRS to return the records and expunge them from any government databases. The IRS, reeling this week after revelations that it had targeted Tea Party conservative organizations for scrutiny, has not yet replied to a request for a comment by Nextgov on the medical record seizure lawsuit.
By Bob Brewin
May 15, 2013