Medical marijuana: private data remains private

I was still reeling from my ill-fated Burning Man vacation when this news came across the wire: a federal grand jury has been denied access to patient records held by "Oregon's medical marijuana program and a private clinic." As Dominic Holden reported in the Slog:

On May 24th, the feds had had enough—federal prosecutor James Hagerty, at the behest of the DEA, filed a subpoena for the records of 17 individuals, 14 of whom were patients with marijuana permits from doctors at the clinic. But the subpoena had broader implications, too. 11 of those named were registered patients with Oregon’s Department of Human Services medical-marijuana program, and the subpoena also demanded that the State of Oregon turn over those patients’ private medical records to the feds.

But in a formal rebuke yesterday afternoon, a federal Judge sided with the state and the clinic, granting a motion to quash both subpoenas. “Absent a further showing of necessity and relevance, compliance with the subpoena would impact significant State and medical privacy interests and is unreasonable,” wrote Judge Robert H. Whaley of the U.S. Court Eastern District of Washington. The ruling represents a major defeat for the DEA and a victory for states with dissenting drug policies.

What I found particularly interesting about the judge's decision was this comment:

"There is an obvious tension between the state's authorization of the production and use of marijuana as a medicine and the federal authority to make such activity a crime," Whaley wrote. "The point at which that tension should be broken by the compelled production of records to a federal grand jury has not been reached with these subpoenas."

I suspect we haven't heard the last of this "obvious tension" - it's quite possible the "point at which that tension should be broken" will be defined sooner rather than later, assuming the feds choose to appeal this decision. This overall tension between state and federal law is only going to increase over the next couple years. The outcome is still quite uncertain, but here's hoping decisions like this continue to add weight to the notion individual states can chart their own course when it comes to determining rational medical marijuana policy.