More on the police admission, and some gaping holes

by: JulieWaters

Sat Dec 08, 2007 at 05:40:59 AM EST

The short summary: VT state police went to at least three pharmacies in the state, and asked them for large scale data dumps of patient records.  Green Mountain Daily found out, and a team effort brought this whole thing out into the open.

That said, I will once again quote the fourth amendment, but marked up the way I think that it's seen by some individuals:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Before I continue, I want to note again that none of this would have hit the way it did if not for the work at Green Mountain Daily.  

So here's what's happened since I wrote yesterday morning:

Late Friday (trash day), an article showed up in Vermont's Rutland Herald: State police admit to improper search.  A few choice excerpts:

MONTPELIER - The Vermont State Police admitted Friday that detectives recently asked three pharmacies to hand over all their information on patients' use of powerful painkillers.

The actions came despite a directive from state law enforcement officials not to use indiscriminate searches.

Lt. John Flanagan said three state police detectives requested that information from three pharmacies in Vermont during the last two weeks, but that supervisors have now put a stop to that effort.

"Mistakes were made," Flanagan said. "From our perspective this is a training issue and we have taken steps to remedy it."

Now... this is really quite interesting, because the day before Major Tom L'Esperance, was saying things that were a bit different.  Green Mountain Daily's John Odum offers his own perspective:

This directly and completely contradicts what Major Tom L'Esperance was desperately spinning saying on Mark Johnson's show. In that appearance (and you should listen to the podcast - it would seem to be a complete fantasyland account based on what we now know), he insisted it was an isolated misunderstanding at one pharmacy, and proceeded with an elaborately detailed counter-history of the incident. I'm not saying he personally made it up - but somebody sure did. Circling the wagons doesn't work when the wheels all fall off.

I will pause to give a brief nod to Air America's Rachel Maddow here, because my next point is relevant to an issue she frequently discusses.  "Trash Day" is political jargon for Friday afternoon.  It's generally considered to be the best possible time to dump information that you'd prefer not get out there, but is going to get out one way or another.  By issuing a press release about something on a Friday afternoon, it tends to get lost in the news cycle and disappear over the weekend, hopefully (from the point of view of the releaser) to fade under the importance of other stories.

I strongly suspect that's what happened here.  First they defended it while pretending it wasn't going on:

Calls to Sleeper's office Wednesday were forwarded to the State Police's criminal division in Waterbury. When asked about the allegations, Major Thomas L'Esperance would not directly answer if troopers had attempted to collect mass amounts of patient information.

"If they have, it was with the goal of stopping the potential spread of deadly drugs on the street," L'Esperance said.

Then they pretended it wasn't as bad as was said (url is mp3 download link):

It's not happened across the state.  Has it happened at other pharmacies?  Absolutely... it's not happening... uh... like the article would want people to believe...

and, in the same interview, called it a "communication" problem:

communication is the key and I just want to be sure that your listeners are at ease... Anthony describes two now.  I only have information about one.  It was a communication issue between the trooper and the pharmacist.

Then, last night, provided a new story:

Mistakes were made," Flanagan said. "From our perspective this is a training issue and we have taken steps to remedy it."

So here's what it boils down to, at least for me: I don't know which version(s) of the story are true, but I don't think we've heard the last of this.   The reassurances by the state police (once again from the Rutland Herald) aren't of major comfort to me (emphasis mine):

The admission from the State Police came late Friday afternoon after the agency issued a two-page press release that detailed the new efforts to stop the illegal sale of prescription drugs, but did not admit any errors.

"Specifically, the allegations in these cases are that the Vermont State Police requested Schedule II prescription records from three particular pharmacies without a nexus to specific criminal activity," the press release read. "Such conduct, if true, would not be in violation of state law but would be a deviation from the directive given to the Vermont State Police by the commissioner of public safety."

Flanagan clarified later that these situations did occur. In the future, state police would only ask for prescription information when investigating a specific criminal allegation, he explained, as had been the process for years.

The absurdity at this point would be funny if not for the fact that these our our civil rights we're discussing.  For all I know, this could have been a genuinely good faith effort to try to stem the tides of drugs, but if that's the case, why the slow bleed of news and the changing of stories throughout the week?  Why the contradicting stories?  Why the spin cycle?  Why not just say "we tried something that we thought was the right thing to do but it's clear that this is causing confusion and frustration, so let's work to come up with a plan for approaching this from a public safety issue that still lets everyone feel as though their rights are being respected?"  

But this sort of approach that they're using?  It is so not working.  

From my own point of view, three things need to happen at this point:

1. the Vermont state legislature has to announce (soon) that it will be holding hearings on this issue and revising the loopholes in the law which allow for it;
2. Vermont Governor Jim Douglas needs to address this and clarify whether any of this approach was signed off on by the Governor's office and what actions he will take to assure us that no such abuses will take place in the future;
3. an opinion has to be issued by the Vermont attorney general as to whether or not the actions taken by the police in this case were legal under Vermont law and a similar one needs to be issued from the Federal level about compliance with HIPAA.

I'm not saying anyone needs to be arrested over this.  I'm not even saying anyone needs to be fired over this.  But I need something to happen that tells me that this is something being taken seriously as a real issue, not just something that gets taken out with the trash on late Friday afternoon.