A judge has ruled against the PBA in a lawsuit we filed and in favor of a summary judgment motion filed by the state in response to this. Based on the negative comments against Division in the Times Union news article from sources as diverse as the American Civil Liberties Union and a widely-respected Professor at John Jay School of Criminal Justice, this certainly appears to be at best a Pyrrhic (and temporary) victory for Division. The bottom line is that Division wants unfettered access to your medical histories and your union is going to fight them every way possible and we intend to ultimately win, as we usually do. The PBA is strategizing for appeal options, and we will announce further actions on the PBA’s crusade for justice. As always, we thank you for your support and solidarity.

Troopers lose privacy lawsuit

Judge affirms firing of two who refused to waive health record confidentiality protection

By MICHELE MORGAN BOLTON, Staff writer

First published: Thursday, February 16, 2006

ALBANY — State Police can force troopers to reveal confidential health records when there’s a concern about fitness for duty, even if it violates an officer’s constitutional right to privacy, a state judge has ruled.

An 11-page decision by Supreme Court Justice Joseph C. Teresi rejected the allegations of the troopers’ union that claimed State Police officials coerced employees into disclosing federally protected personal information by threatening discipline or firing.

The 2004 lawsuit cited the cases of two officers who initially refused to sign the waivers and then did so under pressure.

Both were eventually fired for cause.

In his ruling, Teresi said troopers who refused to sign waivers put themselves and the public at risk.

"Weighing the substantial public interest against the individual’s right to confidentiality, this court finds that government’s interest to protect citizens greatly outweighs the two former officers’ privacy rights," he said.

State Police have a responsibility to protect citizens from employees who aren’t mentally, physically or psychologically capable to perform as cops, Teresi said.

And that’s something that supersedes state law and the federal Health Insurance Portability and Accountability Act, he said.

"There are no provisions … which prohibit employers from making employment contingent upon the signature of waivers in situations where the public trust and safety could be compromised," Teresi said.

The broader implication of Teresi’s decision is Orwellian, said Donna Lieberman, executive director of the New York State Civil Liberties Union.

Requiring public employees to sign away their privacy rights at the discretion of government, which then has unfettered access, will be a disincentive for employees to get the health care they need, she said: "Since when is it the government’s interest if a trooper has had an abortion or a miscarriage? Health records are huge. But what’s next?"

State Police Chief Counsel Glenn Valle said there would be no "fishing expeditions" or "rummaging through people’s medical records," and he stressed that waivers of HIPAA laws are requested only on a case-by-case basis when a trooper’s actions warrant it.

An internal police document was revised in 2004 to include that "HIPAA does not prohibit the State Police from instructing you to allow it to obtain protected health information."

In expressing his satisfaction with Teresi’s ruling on Wednesday, Valle said, "Basically, the judge echoed what we have been saying all along, that it’s critical that a police agency have the right to monitor the medical files of the employees we send out on the streets."

The Police Benevolent Association of New York State Troopers sued the State Police and Superintendent Wayne Bennett, claiming they use personal information to go after employees they want out.

PBA First Vice President Don Postles said the union is more concerned than disappointed with Teresi’s decision and is conferring with attorneys on a next step.

"Fertility problems, depression, female issues including pregnancy and embarrassing health issues, in some cases 15 years old … the State Police wants to know about all of them," Postles said. "How many serious mental and physical conditions will now go untreated because of overzealous employers prying into a person’s entire medical history?"

If there’s a problem, supervisors should order a physical or mental exam, union officials maintain.

Valle remained adamant that troopers know what they are getting into when they sign on for the job: "People volunteer to be police officers. We don’t draft people. If you assume the responsibilities and receive the power of a police officer, there must be an accountability to your police agency, which is then accountable to the public."

Doctors and pilots also have responsibilities for protecting human lives, but they aren’t held to a double standard, said Maki Haberfeld, chairwoman of the Law and Police Science Department at John Jay Criminal College in New York City.

"This opens the window to other potential abuses," said Haberfeld, who specializes in "police best practices." "They already have difficulties attracting the right people to the police profession. … (The waiver policy) is something I would strongly stand against. It could be used arbitrarily and I consider it punitive."