Outstanding court win for State Troopers PBA
PBA, 2004-12-17

An Appeals Court has ruled that the Division of State Police did not have the right to obtain the medical records of a New York State Trooper in a specific incident. To read the details of this court victory as described in an article published in the Times Union newspaper, click on the link or refer to the text below.

Court backs troopers’ privacy

Ruling sides with union in dispute over State Police access to employee’s medical records

By MICHELE MORGAN BOLTON, Staff writer
First published: Friday, December 17, 2004

ALBANY — State Police do not have the right to subpoena the medical records of a trooper facing discipline, a mid-level appeals court has ruled.

In a decision that could have far-reaching implications, the ruling handed down Thursday by the Appellate Division of State Supreme Court is seen as a victory for the Police Benevolent Association, which represents thousands of state troopers.

It also comes as the union awaits a decision on a broader lawsuit filed by the PBA that seeks to prohibit top police officials from intimidating troopers who do not sign waivers giving the administration access to private information.

"This is a victory, not just for troopers, but for employees everywhere," PBA President Dan DeFedericis said. "It stops the State Police from going on fishing expeditions."

It’s one thing for troopers to voluntarily provide access, he said.

"It’s another if they’re forced to sign a waiver," DeFedericis said. "We see a trend here. We are fighting them at every turn. And they know it."

Thursday’s decision addressed the case of a trooper who called 911 while off-duty on Dec. 18, 2003, to report he’d been attacked by an unknown male. Details about what occurred remain sketchy, but the trooper was found four hours later and brought to Albany Medical Center Hospital for treatment.

An internal affairs investigation was launched, as per procedure, but when the trooper refused an order to sign a medical release for those hospital records, he was charged with violating a direct order and suspended without pay.

A related state Supreme Court decision released Wednesday said State Police also wrongly withheld the trooper’s pay after his initial 30-day suspension, and ordered he be paid — retroactive to January 2004.

State Police have always believed they should have open access to a trooper’s medical records when there has been an issue of physical or mental fitness. But that access was curtailed last year — as with employers everywhere — when the federal Health Insurance Portability and Accountability Act took effect.

However, in New York, an internal police document was revised last March to read "HIPAA does not prohibit the State Police from instructing you to allow it to obtain protected health information."

State Police chief counsel Glenn Vallee said the "bread and butter" of the issue is whether the State Police can order members to release their records: "Our position is yes. Their position is no."

Despite Thursday’s ruling, Valle said he believes the law is on the side of the State Police: "The courts have held that police officers have a diminished expectation of privacy in certain aspects of their lives. Period."

"We have a responsibility to protect the public … and be sure about any person we turn out on the street with a Glock Model 17 on the hip," Valle said.

Valle also rejected the notion that police randomly search for incriminating information on their employees: "Show me a single case where that occurred."

But Washington, D.C., lawyer Steve DeNigris, who represents the trooper fighting discipline, said it happens all the time.

"It is unconscionable to me that you have a police department charged with enforcing the law that, at times, gets the notion they are above the law when it comes to their employees," he said. "Police officers are not entitled to a watered-down version of the Constitution."

Attorney Jane Bello Burke, who represents the PBA, said she hopes the case playing out in state Supreme Court serves to sensitize people to the need for medical records privacy.

A recent study showed that one out of six sick Americans didn’t tell their doctors the entire truth for fear of public exposure or embarrassment, she said.