The U.S. Justice Department has, by a surprising, specific inclusion of psychiatrist's working notes under “documentary” evidence, made all such patient records subject to seizure by search warrant. Although the final regulations (published in the April 17, 1981 Federal Register and effective as of May 18) are ostensibly to restrict the issuance of such search warrants for obtaining documentary evidence from persons not suspected of criminal activity, the effect of the inclusion of psychiatrist's working notes is to deprive all psychiatric records of immunity from search and seizure by federal law enforcement agencies during a criminal investigation.
The regulations, as published, do direct federal officers to be aware of the importance of personal privacy interests, especially those involving professional and confidential relationships. In such instances, a search warrant is prohibited, unless the alternative method of obtaining a subpoena would “substantially jeopardize” the availability and usefulness of such evidence and unless access to this evidence “appears to be of substantial importance to the investigation”. Moreover, federal officers are required to obtain authorization for a warrant from a deputy assistant attorney general or, in emergencies, from a U.S. attorney.
However, the regulations are regarded as offering little protection against intrusive search warrants, which may now seize a therapist's notes containing dreams, fantasies, and associations of patients. Such warrants are issued without a judicial hearing, and thus allow no opportunity for challenge on the grounds of privilege and confidentiality. Moreover, they allow officials to enter a therapist's office at any time without notice to directly search files, leaving open the possibility of scrutiny of other patient records unrelated to the investigation. Finally, penalties for violation of these regulations appear vague and minimal—“appropriate disciplinary action by the agency or department”. Such penalties as might be assessed are not subject to court litigation.
Analysts and other psychotherapists are now in need of a shield against such invasive searches, as was won by journalists through the passage of the Privacy Protection Act of 1980. It would appear that such legislative relief is now the only remaining remedy.