an appeal that i believe is of some importance to the rights of public employees in new york state i'm going to start and simply address what i believe is the central question that's posed by this appeal and that is whether under this court's precedent public officials have carte blanche to illegally access a medical records database go through that database and look at their employees public it look at their employees health records and then conduct but the question before us is used as you put it in your grief since i understand it is whether there's a constitution fourteenth amendment right to privacy that attaches here in connection with the computer breach for lack of a better word i would agree roger and that was what i was going to summarize at the end is whether or not that conduct is permissible under the constitution and the right  privacy that has been that's not part blush well it's it's a question is a carte blanche under the constitution under the constitution under the fourteenth amendment under the implied right of privacy in the fourteenth amendment to public officials get to go access a computer database illegally and go surfing through their employers medical records so they can use those records against him and he you are saying that they don't have the right whether or not the illness  being checked upon is stigmatizing or not i would agree judge pooler that under the madison decision that is a central question that has to be decided in this appeal whether or not there is your point is it's not the only question i'm sorry your point is it's not the only question i would agree it's not the only question i have a question the other question would be is there a balancing test that this court is going to apply in the the if if if one of the consideration i mean most of the cases that have been decided look at the at the government interest as well as the re of medical seriousness and possibility of stick it's often it's it's it's it's after they look at the the seriousness of the offense but it's still been considered by many many judges and so it seems to me that there's a series of the considerations here that could bear on the question one is the seriousness of the offense and the possibility of its stigmatisation or possibility that that might  to discrimination is that the nature of the of the disclosure of first of all if it's authorized that's not a problem but if it's an authorized that it could be there could be a bad faith aspect to it and if that's the case my question is doesn't consideration of the seriousness of the illness kind of put the cart before the horse  because the person who's accessing in bad faith may or may not find something that's stigmatizing but the you would argue presumably that the privacy violation is the same that is the records were accessed improperly whether or not it's serious yes you are that stupid much better than i could have s involved and if you have a public official illegally accessing a computer database with malicious intent to harm their public employees and to harm their interests for worker's comp to use sick leave whatever it is  i mean obviously this is there are three plaintiffs here this is part of a larger pattern that would be a reason would have to be confined to public employees either where i mean if i had my records at some hospital and somebody had it in for me and somehow managed to get the records  and wanted to see if there was something they could use against me maybe i wanted to i have a position in public life or something of that sort or want to run for office or something like that would not be a serious problem to results in teen in some information matter what type of information about a person is a constitutional violation under which because it's worst thing you wouldn't have allison test would be a single test no i'm not arguing you're not arguing arguing that it's not maintain anybody but there are plenty of occasions where public officials and this court has in the decisions in this court and in the lower courts in the second circuit have discussed a number of legitimate reasons why the government would have to access this information the best example would be every every illegitimate reason you're saying would constitute a constitutional violation was under not to be a medical condition it could be anything no i'm before they access the records yes i think they need to have a valid reason then again you know a reason to actually go up and open up and then it would be just a different set of defendants here right and then someone would have for approved  maybe they wouldn't this was part of a pattern and practice the briefing details a number of different instances where this went on it went on for scores of individuals you know if the hospital was sanctioned no the hospital learned about it and cut off  access but they weren't sanctioned there afterwards for not you might not to my knowledge they didn't know they had or they had a written agreement with north that detail the scope of her access and then either but certainly it was her because she admits doing it to another one of my clients charles marlboro and getting into his mental health records but either she she did it or she allowed her password to be placed in such a place where people could go and and look at it with you know go in and look at these things w impunity is is this balancing test that you are asking us to to apply in this case as opposed to a test that proceeds in two parts of threshold tests plus the other factors is that something that you would describe as clearly establishing a law in the second circuit was this up to some debate i think under the whole versus pelzer decision from the supreme court it certainly would make common sense that the public officials in two thousand thought the question is a clearly established for purposes of qualified immunity officially states don't know about the requirements of hipaa even though that's doesn't lead to an independent right of action and there's also state law requirements that associate that are involved with the privacy of these records that the court can look to under oath vs pelzer so given that entitlement to qualified immunity because think they couldn't have believed they couldn't have believed it was legitimate to do this is what you say i agree both under the access agreement and under federal and state statute they could not have believed it was appropriate to do this and certainly would be because the it assuming that the access was done for continuity of care as required under the agreement if you know a prisoner goes leaving that aside the prisoners have a lower expectation privacy generally they do but elsewhere but i'm saying i'm just talking about the expectation of privacy is my opinion that a prisoner would enjoy significant privacy protections from this sort of breach i know there's one example in lieutenant caroms deposition where one member of the sheriff's department got into those records to determine whether or not a inmate who he had met on the outside and had relations with was a positive so you know there are a range of factual circumstances associate with prisoners i think would be implicated by that sort of illegal breach but that but but certainly their expectation would be lower than a public employee who has given no they had an expectation of privacy in their own medical records absolutely your honor if they had an expectation of privacy in their medical records and those records talking here about prior authorization or  that kind of thing we're talking about looking at that and a breach or some access and then making an assessment after that about whether or not there was a constitutional violation isn't that that's that's essentially what we're doing here i mean we're not looking at about to you know if we're not ins suggesting that there be a requirement in advance to go give notice to have a hearing or anything of that story we're looking at it the patient maybe there's someone fortunate reason why there could be some sort of access to medical records that is not beyond the scope of what we're talking about but under no circumstances should any public official as your hon judge walker as you used in the example of someone don't like you would want to get in your records and there are there are public official there should be absolutely no justification for that sort of access especially when as your honor suggested in your eye pathetically that it's taken for malicious intent and that's what was done here that's what i don't know the justification that the prison officials give is that they wanted to see if their workers were lying about sick leave  they can go through their employment agreement and get them to provide them with an authorization through their union and look at their records less restrictive me of checking their employees health absolutely without looking at their medical records and even in a workers compensation situation to a seven c situation those records would be reviewed by an independent by an independent mediator arbitrator they would be reviewed by the county they would be reviewed by the sheriff's department so were a bouncing which we don't think there was they would fail on the balancing because their interest is not compelling enough to allow them access to the medical records is that your argument by argument is that they had no interest in getting into the medical records other than malicious intent other than going through the back door to enforce a sick leave policy that was in force against pregnant individuals people with cancer and they go through the back door with this back you personally i believe that that the court if it deems our appeal worthwhile it applies a balancing test of this case that judge moore too should have an opportunity to apply that balancing test in further of the condition fibro myalgia and as well as on the stigmatizing or not effect of that condition and determined not withstanding a breach seems to me that there was no constitutional right to privacy that was implicated by the plaintiffs five of my alger in that case i would agree that the madison decision focuses very closely on that question  i would however perspective we should just that be mattson decision also focused on the balancing test and made a balancing test of the need for the information in that case you had an individual who was being i'm a linger who is claiming he had breach and that's and i don't agree that it was a malicious breach and that's in the school board had a statutory authority to issue reports the school board had the medical records through legitimate channels and gained access to those medical records through an from the employee is part of it was part of an administrative proceeding where the employee had to process the problem and that's when was the issue the report and they put the name of the condition out there in this court looking at that said first off fibromyalgia is not serious enough and second the school district has a statutory authority to issue these reports when the school district believes it's being defrauded and the employees those workers were accessed didn't know that they were being accessed without their permission that's absolutely correct they did not learn it until several years later although they did not learn until several years later and one gentleman i mean i just talked to the individual one gentleman had his records accessed after he had there the question was whether the was on a school board was asking a employee to sign a broad medical release from granted access to two substance abuse records and other medical records and we we said that they that the individual had a privacy right in his records and that the board didn't have a sufficient interest in requesting them in that case and we drew a distinction between requiring employees to undergo medical examination and requiring the records themselves given the board members aren't medical medical experts  so we found that the board's demand for the records was unconscious was was was a constitutionally arbitrary and really didn't discuss much the seriousness of the records the nature of the records to privacy is existence in a particular case depends on balancing the severity of the privacy invasion against the state interest and disclosure so i think there are threads of this you know  we haven't announced a formal balancing test but i think and in fairness your honor i also don't think the court has seen anything quite as outrageous as what happened here where you have illegally accessing a computer database to gain advantage over his employees by going through their records or did someone doing it at his behest that is i would think that it would be very difficult for the sheriff to provide a compelling just for cation for that and he doesn't have one there is no justification for this this was done out of spite this is the argument if we were to remand the making to the district attorney it would be it would be i you have to have it and i think precedent is kid court makes clear you have to have a justification for what you're doing and that in that justification will then enter into the balancing test and if you have no justification other then spite towards your employees other than malice towards your employees then i think that's your argument all right i understand i've gone fourteen minutes overtime in these two minutes for about oh that of the analysis and it was does the constitution protects maxence right to maintain the confidentiality of fibromyalgia that was the threshold issue that was given it was limited to that disease it was limited to the examination of the condition to determine whether that particular condition is one that is off according to constitutional protection from you think what we take from madison is that every disease has to be analyzed for its  concern is is there are other concerns which is the government's interest in obtaining information and the whether the access was done in bad faith or not why aren't those relevant considerations right i believe that the statutes hipaa law protects the confidentiality of medical records and provides a remedy for those whose rights have been violated in terms of access to those records statutory common law negligence allows a claim to be brought for someone who has been wronged by some improper or negligent action on the part of a public official such as this case in getting to the constitutional level there has to be some threshold for example if if the if the boss in the state agency learns that the employee is out sick with a virus and at the water cooler says to h r you know sally is home sick with a virus under the analysis you're being asked to provide earlier you're being asked to approve today the balancing test there has to be there is going to be a constitutional analysis was a virus a condition that should be protected what was the government's interest is the quote that the bigger question is why should that consideration those factors the seriousness of the conditions of one be placed as a matter of balancing in the context of the need for the government officials to get that information first place so for example if it's purely malicious why shouldn't a court be required as a constitutional manner to consider that fact notwithstanding the fact that it's a very minor condition that by happenstance is is an issue that you know you could have it could have been that any of these points of said some much more stigmatizing condition just happened to be that they found a heart condition her hand and so on why so why should that be part of the balance that is the the the the rationale the reason for the breach in the first place but the historical star reason is that in mass and this court says it would not extend constitutional protections to all medical conditions it required in the first instance a threshold that had these young it was her computer right it was not her computer it was a password and the facts are somewhat in her favor because there was a password that she had that other people use and she taped it to her desk it was young's password it was her passwords on the tape that right next to the computer she taped in her drawer but our door would open up and people going to where it was right while all the nurses needed access to the records she didn't work all the time so everyone knew where it was that say yes our nursing staff did yes so but so it was negligence maybe on her part it wasn't willfulness in other words she wasn't deliberately disclosing anything in order for for others to  is it is what you're saying that's correct why would that be part of the balance the nature of the of the of the access and if the access was not done in bad faith or for malicious purposes that would be a factor because you know i believe you have to start with a threshold type of medical condition that's not every medical condition would and that but the but the the problem with doing that is that it's it seems that the medical condition is something that the person gaining access won't wouldn't wouldn't know about and so they're reaching a right of reaching some good some right of confidentiality maybe say hipaa right but it's some right of confidentiality that everybody has a medical records and that our society has recognized it she's arguably violating the hipaa long and she's arguably violating a contract at the jail had with certain hospital that's would be drawing draw we look at look at determining rights and obligations from a constitutional perspective into get into generally accepted traditional behavior and expectations very often and certainly medical privacy is at the height hold out that that would rise to a constitutional level that would be something that would be taken into account in the in the balance and therefore you wouldn't just have necessarily have a privacy violation of of a constitutional nature in every case but but it would depend on the circumstances we have been balancing test occur all the time i mean we haven't in due process we haven't in every every aspect of privacy that extends to the confidentiality of medical condition one's medical condition medical records a separate but medical condition there is a right but the framing of the issue in max and told us that the issue is what is match and so forth that was more of a balance in nature than you would be in a position to argue that this was not clearly established law at the time that these individuals did with a dead right we would certainly argue the maxon is the established law consider very carefully considered o'connor which was authored by an exceptional member of our court and thought about whether you could have a balancing test and decided that at least with respect to some medical conditions a constitutional right of privacy may not attach that's not was our holding in that case in your view yes it was wrong but don't you have to look at what illness is being considered so don't you let the cat out of the bag before your need is chance to you just look at the records and say this is one we shouldn't have looked at and then you find one well this is good this is stigmatiz and don't you get the records before you make your justification the records are protected by the hipaa laws which gives a remedy for somebody who's wrong in that remedy lies with the government to pursue that remedy with respect to the condition which is separate the condition has to be one that's constitutionally protected under the right of privacy and not every medical condition is or can be which is the ruling of any court that's going on except that everyone has a right to confidentiality in their own medical records of a statutory right or i do agree with that they do agree with that it was statutory right to privacy and what about the rules that the hospital imposed on the use of their information at the prison which mystic each told us about so that everyone who accessed it was breaking the contract with the hospital they did break the contract with the hospital they did but just to be clear the record shows that mr hancock is first client came to my client and said i have a laboratory report can you look at up for me she looked it up for him told him what his lab report says that's the facts the different facts on that one the other two she denies having any to do with her or her password was used someone else one of those day she wasn't even working the part that was the agreement with the hospital well publicized did everyone who access this computer know that it was a violation of the contract with the hospital i don't know that i know that my client knew that it was a condo then so there can't be qualified immunity right because she knew no reasonable person would think you can access this computer just because you wanted the information that was in it that she did not access it for the only breach that she did would have been for mr hancock who requested that she do it the other one she denies even doing so to say that she knew it when she says i didn't do the access i didn't make the access i wasn't working that day means that she's she's she knows that there's a contract that exists but she's not violating that contract and she violated the contract by taping her password to the inside of her drawer and everyone knew if she put it on everyone not just the nursing staff which has its own obligations to maintain confidential confidentiality there were three north think nursing station she had the password at one in a drawer so that when she was not working in an inmate is injured or at jail that the nurses on duty could access the medical records and determine whatever they needed to determine at the time if they had some medical condition or some blood condition and how to treat them at the job let me just sum up do you believe that every person whether in prison or working in a prison or just sitting here on the bench has a right to the privacy of their medical records believe they have a hipper right to the privacy of their not talking about him from just don't you talking about the basic constitutional right to be left alone to have the privacy in your records don't you believe in that believe they have a couple i do not use i do not believe in a constitutional right to privacy of everything and anyone in someone's medical records i do not believe that that's what wrong going forward with us that says well we set a mats and that type of analysis necessarily will include certain medical conditions the work food others is there anything wrong with having a little out of sorts of that which is that when there is an instance of truly egregious government conduct then we ought to consider that because here me part of the problem is that it's a haphazard test it just turns out that not withstanding the egregiousness of the government conduct the condition that the government ultimately learns about is very minor when they're looking for something maybe more serious but part of these constitutional tests are designed to deter so is anything wrong with going forward with a test that adds that as a necessary factor to clarify or to slightly if a constitutional analysis is conducted whether there's a balancing test or not the threshold question would still be what's the seriousness of the condition but i don't think you know until you just conduct just know the seriousness of the condition of the condition that's the first question that's obviously a tautology you have to find out what the disease is before you you have you believe a constitutional right arises that's like being a little bit pregnant you have a constitutional right or you right thank you we'll hear from the count is from a fourteenth amendment perspective each individual has their rights and their rights in certain conditions and i believe mattson in the second circuit case law says you have to look at the condition to determine whether that person has a right relative to that condition it seems to me counsel with all due respect absurd that you determine if you have violated the constitutional rights of the person after you found out what th decide whether a constitutional right arises that is just backwards i i believe that's what that's and says and i think that's what the the cases that have interpreted nights and have said i believe after you get past that question then you get into the balancing of what what business did the government have what was was it was it disclosed or was it just access to are saying that the balance and only you only get into that when you have a disclosure of of a serious illness that creates a stigma or so is a basis for discrimination so within that universe is is all that you're looking at and what we're suggesting is that egregious behavior on the part of the government that maybe discloses medical information that doesn't have the same these records confidential and didn't tape it but she knew the combination and they these officers abused her even tortured her in order to get that information because they wanted to use it for their own nefarious purposes no constitutional your position would be no constitutional right of privacy as forces of a heart condition is concerned but there is a be a that's an extreme example of something that would shock the conscience of the of of a government actor going away but it seems to me that that's something that the law takes into account and so also some of the constitution takes into account and why why shouldn't we be think it becomes part of the picture after you get past that first question i understand your same and my question that that's that's not really answered my question as to why why i'm just it's and if he didn't sit with you as i  said as well that you got your hip a law which protects disclosures and then you have the constitution which is for a more serious situation and it's only a question of the fourteenth amendment right to privacy if there's some other outrageous conduct that may have some other cause of action some other claim under one thousand nine hundred three that can be put in so we hit so believe so i believe it was a request actually what they did was they actually disclosed information about this person's condition and it was politically motivated so in our case there was access there was no disclosure outside of so far as we know tennie one so i would submit that that just identified something else isn't doesn't that sort of function with the the nature of the of the of the disclosure suppose somebody takes your medical information improperly and then sees it and then decides to go and publish it or make some some public statement about it in a campaign or something of that sort i believe that has happened in some of the cases that that and i believe that's a violation of the person's right of privacy it doesn't start it isn't just the disclosure initial disclosure it's what happens afterwards you become it becomes less and less and less private as bore disclosure occurs and i believe even in the egregious this of a situation like that they still look at the medical condition and and when it was used for untoward aga the medical condition is not one of those serious conditions that is subject to protection as the case law states they don't have a fourteenth amendment committee even if they'd send even if the government officials disseminate that disclose it's of the work it depends on the condition i believe yes they may have done something else meaning but not you're not that's it i'm sorry they may have done something else wrong but not but not a violation of the fourteenth amendment right to privacy well they're also depends only on whether there's a program or discrimination as a result of it or becomes a statement also depends on the nature of the circumstances in which it's disclosed doesn't it i mean if it's if it's in the political context it could be very different from another context if it's a celebrity it could be something it could be you know for all sorts of different permutations that could occur that affect the danger of the disclosure as well and that the danger of the disclosure would shed light on the degree of of privacy violation yes and so i think you've mentioned some of the qualified immunity points and that's in my brief not going to restate it but if there is a new test that's the comes out of this case i don't think it should result to my individual client detriment and then there was also the computer fraud abuse act cause of action which was dismissed on the rule twelve we submit that there was no evidence of any computer related damages that it went to a five thousand brant said if you have no objection to the nurses who are treating prisoners for continuing diseases or we're sending them to the hospital you have no problem with them accessing the computer right no the problem is with the sheriff accessing the computer to check on whether his employees will lying about sick leave yes that is so if you do that bouncing ab initio that's not a legitimate reason that's what you're arguing right yes because he had other less restrictive means of doing it give me a doctor's note i mean a doctor's note will go through the union process and get medical authorizations he did this by their back without them knowing to have malice out of spite this went on for mental health records twelve year old girl oh i did this analysis however access would not be no one would there wouldn't be access if he didn't justify a reason that a straight face reason that everyone would agree was legitimate i don't know who would justify to but he has to know that it's illegitimate to access this to check on whether employe lie absolutely and that's why he worked to cover it up and that was detailed in the brief where there was a period of delay where he didn't want people from some hospital to notify these individuals because he and what the learn what had happened because he knew he was going to get sued especially access have been worded in the larger context i would agree just walk right yes i would agree judge walker i think that judge strawbs dissent in that case detailed some of the problems that we're going to flow from that decision you think that the majority it's no problem we were adults you think that the majority got it wrong i think the majority should have rounded off the corners of their decision but the majority was that some longly decided you know a simple question yes i believe that madsen in terms of doing a two part analysis where the seriousness of the health condition is considered first in the absence of any balloting was wrongly decided you think we should overturn mattson in this case no i don't believe a match needs to be overturned i think the court has other precedent that applied a balancing test subsumes o'connor all this other person that you malign and that's the last case that's the last relevant case so you think that we should that's what we do perfectly well we know how to cabinet and say this is the fact but in a broader concept it's and i would agree judge poor that is the what do you make of the following this type of another this is language for manson and considering claims that the constitutional right of privacy attaches to very serious medical conditions we also proceed on a case by case basis in doing so we examined all the relevant factors that cut both in favor of any extra against extending privacy protection to such medical conditions this type of analysis necessarily will include certain medical conditions but will exclude others i agree that's what the decision says well that sounds like a balancing test to me but with with  suggesting that you don't consider the seriousness of the condition i think mr lewis brand in his argument talked about if you know a school nurse calls a doctor and says haters cheney really have a cold and the nurse says yeah you know is that going to rise to the level of a constitutional violation i would i would think not though we should in that case conduct a full blown analysis with all of the relevant factors as opposed to saying you know the fact that someone's got a whether or not someone's got a cold is just not is not wise to a constitutional violation by think it's like anything else and you know that these balancing tacit and put in place by the supreme court and by this court for a reason you've got to look at everything and then the court has to look in balance to be importance of the right versus the need for the information versus the harm that was versus the harm that was caused to or the potential harm that was caused  certainly in terms of using mr little brands example of the school secretary whether that represents a constitutional violation or not i don't know that's certainly not the case i would take as a plaintiff civil rights lawyer but that's a far cry from often problems i don't i i respectfully suggest that that is not a significant hurdle to the court issuing a ruling requiring a balancing test in this case time and i appreciate the court's courtesy to me i would like to add just on the c f a issue or c s issue that this is the type of situation that can cause the modification or impairment of a medical diagnosis especially as it relates to mr desson you who had the heart problem you know they went in and search through his records and told him to come back to work at the same time you don't force the guy to come back to work who just had heart surgery that's that's that's pretty outrageous and i