Stone v. City of Stow

593 N.E.2d 294, 64 Ohio St. 3d 156, 1992 Ohio LEXIS 1386
CourtOhio Supreme Court
DecidedJuly 8, 1992
DocketNo. 91-693
StatusPublished
Cited by69 cases

This text of 593 N.E.2d 294 (Stone v. City of Stow) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stone v. City of Stow, 593 N.E.2d 294, 64 Ohio St. 3d 156, 1992 Ohio LEXIS 1386 (Ohio 1992).

Opinions

Alice Robie Resnick, J.

In their appeal to this court, appellants contend that R.C. 3719.13, 3719.27, and Ohio Adm.Code 4729-5-17 violate both the right of privacy and the prohibition against unreasonable searches and seizures found in the United States and Ohio Constitutions. For the reasons which follow, we find that the statutory and regulatory program allowing officers and pharmacy board agents to inspect prescription records withstands constitutional scrutiny, based on the record before us, and we affirm the judgment of the court of appeals.

Appellants challenge the constitutionality of three different provisions: R.C. 3719.13 and 3719.27, and Ohio Adm.Code 4729-5-17.1 Taken together, these [160]*160provisions provide for the inspection of pharmacy prescription records, without a warrant, by state and local law enforcement officers and by employees of the State Board of Pharmacy.

I

The Right of Privacy

The first issue we address is whether the challenged provisions violate a right of privacy protected by the United States or Ohio Constitutions, and therefore are unconstitutional on their face, or as applied.

The United States Supreme Court, in Roe v. Wade (1973), 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176, stated that a “right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the [United States] Constitution.” While Roe v. Wade established that the right [161]*161of privacy, based on the Fourteenth Amendment’s concept of personal liberty, does exist in certain situations, it has been subsequent cases which have set the scope of the right. Thus, in Paul v. Davis (1976), 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405, 421, the United States Supreme Court stated that “the personal rights found in this guarantee of personal privacy must be limited to those which are ‘fundamental’ or ‘implicit within the concept of ordered liberty’ * * (Citing Palko v. Connecticut [1937], 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, 292.)

In Whalen v. Roe (1977), 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64, the United States Supreme Court considered whether a New York statute, similar in some respects to the Ohio provisions at issue in the present case, violated a right of privacy. The New York statute required that physicians identify patients receiving prescriptions for certain drugs (labeled “Schedule II” drugs) which had both a recognized medical use and also a potential for abuse. The names and addresses of the patients were then recorded in a centralized computer file maintained by the state health department. Patients who regularly obtained prescriptions for the drugs, and physicians who prescribed the drugs for their patients, contended that the statute violated a constitutionally protected right of privacy.

The Whalen court found that at least two separate kinds of privacy rights were implicated in the case before it: “One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Id., 429 U.S. at 599-600, 97 S.Ct. at 876, 51 L.Ed.2d at 73.

In considering the first type of privacy interest, confidentiality in personal matters, the Whalen court found no constitutional violation. The court stated that the disclosures were not “meaningfully distinguishable from a host of other unpleasant invasions of privacy that are associated with many facets of health care.” Id., 429 U.S. at 602, 97 S.Ct. at 878, 51 L.Ed.2d at 75. The court noted that security measures were implemented to protect the data from disclosure, that the statute and a health department regulation expressly prohibited public disclosure, and that willful violation of the nondisclosure provisions had been made a crime. Id., 429 U.S. at 594-595, 97 S.Ct. at 873-874, 51 L.Ed.2d at 70. The court further noted that “[t]here is no support in the record * * * for an assumption that the security provisions of the statute will be administered improperly.” Id., 429 U.S. at 601, 97 S.Ct. at 877, 51 L.Ed.2d at 74.

In considering the second type of privacy interest, autonomy in making personal decisions, the Whalen court also found no constitutional violation. While the court conceded that “[unquestionably, some individuals’ concern [162]*162for their own privacy may lead them to avoid or to postpone needed medical attention * * the court concluded that “[requiring such disclosures * * * does not automatically amount to an impermissible invasion of privacy.” Id., 429 U.S. at 602, 97 S.Ct. at 878, 51 L.Ed.2d at 75.2

The Whalen court held “that neither the immediate nor the threatened impact of the patient-identification requirements in the * * * Act * * * on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated is sufficient to constitute an invasion of any right or liberty protected by the Fourteenth Amendment.” Id., 429 U.S. at 603-604, 97 S.Ct. at 878, 51 L.Ed.2d at 76. The court found that “New York’s statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual’s interest in privacy.” Id., 429 U.S. at 605, 97 S.Ct. at 879, 51 L.Ed.2d at 77.

Appellants contend that Ohio’s statutory scheme has several fundamental differences from the New York scheme challenged in Whalen, and that therefore the Ohio scheme violates the right of privacy while the New York scheme in Whalen did not. Appellants argue that, in allowing police officers access to the prescription records, the Ohio provisions impermissibly go beyond the New York scheme which allowed only employees of the state health department to have access to the records. We are somewhat troubled by police initiation of administrative searches. However, we do not believe that the fact of police initiation, alone, requires a finding that appellants’ privacy rights have been violated. See New York v. Burger (1987), 482 U.S. 691, 717, 107 S.Ct. 2636, 2652, 96 L.Ed.2d 601, 623 (“So long as a regulatory scheme is properly administrative, it is not rendered illegal by the fact that the inspecting officer has the power to arrest individuals for violations other than those created by the scheme itself.”). In Whalen, the United States Supreme Court made clear that whatever privacy rights were implicated in that case related to the disclosure of information to the general public. In the case at bar, as in Whalen, disclosure of the information to the public is legally prohibited. See R.C. 3719.13 (limiting situations in which the information may be divulged); R.C. 3719.99(D) (making improper disclosure a misdemeanor). On the state of the record before us, we cannot speculate that such unauthorized disclosure will inevitably occur.

Appellants also argue that the safeguards against disclosure contained in the Ohio scheme are not as extensive as those in the New York scheme at [163]

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Cite This Page — Counsel Stack

Bluebook (online)
593 N.E.2d 294, 64 Ohio St. 3d 156, 1992 Ohio LEXIS 1386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stone-v-city-of-stow-ohio-1992.