VAN SUSTEREN: Now to the investigation surrounding radio talk-show host Rush Limbaugh’s OxyContin use. Limbaugh hasn’t been charged with a crime, so does seizing his medical records violate his constitutional rights? Prosecutors filed a motion last week arguing privacy rights should not be used to hide criminal wrongdoing.
Limbaugh’s lawyer Roy Black joins us from Miami.
Nice to see you, Roy.
ROY BLACK, CRIMINAL-DEFENSE ATTORNEY: Good evening, Greta.
VAN SUSTEREN: All right, Roy. Why did they — or let me back up. How did they seize his medical records? Under what authority did the D.A. seize Rush Limbaugh’s medical records?
BLACK: Well, they did an end run around the Florida statutes, which set out very clearly about how medical records should be obtained for court proceedings, and they obtained search warrants and sent police officers into four doctors’ offices and seized all the files and then brought them back to their office. So in doing so…
VAN SUSTEREN: But I thought that — I — but let me just stop you for one second. I thought under Florida law that they could get a search warrant, but then they — before they could look at them, they were obliged to notify the person whose records were taken so the person could contest it.
BLACK: No, Greta, there’s one case which that was done, and it was authorized to do so, but the records were not seized from a hospital or from a physician. It was seized from an insurance company that was selling policies based on people’s medical records, and the patients there had signed forms waiving their right to privacy.
So it’s an entirely different type of case. All the cases dealing with seizing records from your doctor, from your hospital require that the state file — or follow a particular procedure, which they ignored in this case.
VAN SUSTEREN: All right. And by that procedure — I don’t know if you understood my question. The procedure is that they actually have to notify you so you can contest it, right?
BLACK: Right. Well, what they’re required to do — in Florida, thank God, in our constitution, we have a right of privacy, a constitutional right to privacy, and the Florida legislature created a system by which medical records could be obtained because of how important this was to people, and you have to first notify the patient, allow the patient to file an objection in court.
Then there has to be an evidentiary hearing. A judge then has to examine the records in camera before they can be given to either a prosecutor or any other lawyer, and it gives you very strong protections to protect your right to privacy.
VAN SUSTEREN: All right. So why didn’t the trial court judge slap the D.A. around a little bit for not following those procedures? Why are you now in the court of appeals?
BLACK: Well, as you know, Greta, we have appellate courts because, unfortunately, trial judges make mistakes all the time, and this judge, without even holding an evidentiary hearing as the statute requires, bought the state’s argument that they had the option of using a search warrant and, therefore, could ignore Florida law.
The basis of our appeal is not even the state attorney can violate Florida law, and they’re required to follow these procedures, and they cannot at their option just ignore our rights to privacy. If they could do that, why have — why is it a constitutional right?
VAN SUSTEREN: And the ACLU has joined forces with Rush Limbaugh, which is, in some ways, sort of strange bedfellows in a way.
BLACK: Well, a number of groups have, the ACLU, a number of doctors’ groups, pain patients’ groups because this is so important, not just to my client, who’s Rush, but they’re worried about all the other times this can happen.
If we allow the prosecutors to do an end run around your constitutional rights, then everybody’s records are in jeopardy, and you can just imagine what it’s like to have your enemies get hold of your medical records.
If I wanted to really destroy someone, I would ignore their tax returns. I’d much rather have their medical records, which is going to have a lot more juicy information in them.
VAN SUSTEREN: All right. In the last 30 seconds we have left, Roy, I guess that we have to wait for resolution of the appeal before we find out whether he’s actually going to be charged, right?
BLACK: Right. We are going to be filing now a response to the latest state filing on Thursday, and then the court will look at all the papers, order an oral argument, and then issue an opinion.
But this is a very important thing, and that’s one reason why the ACLU is in this. It’s not because they like Rush Limbaugh or they like me. What they’re interested in is this core right to privacy…
VAN SUSTEREN: And…
BLACK: … and this is really a battleground.
VAN SUSTEREN: All right. Say hello to your wife for me, Roy.
BLACK: Well, thank you, Greta. She told me to say hello to you.
VAN SUSTEREN: All right.