Privileges and Privacy for the Rulers

Recent journalistic investigations revealed that the family and friends of New York governor Andrew Cuomo benefited from nomenklatura privileges at the time when ordinary people had problems getting Covid-19 tests and timely results. These state-privileged people could be tested rapidly, often at home and many times if they wished. Their tests were often rushed to laboratories by state troopers and treated in priority. Liz Wolfe of Reason Magazine writes:

There was limited testing if you thought you’d been exposed, and long wait times if you did manage to nab one of those precious few tests.

But not if your last name starts with a C and ends with an uomo! …

The Albany Times Union reported last night that Democratic Gov. Andrew Cuomo directed the state’s top health officials to prioritize COVID testing for “the governor’s relatives as well as influential people with ties to the administration.”

This reminded me that, in late December, I reported on Cuomo’s intention to prosecute those who would give or sell Covid-19 vaccines to anybody outside the groups favored by the state and its priorities (“Free Enterprise: A Daring New Year Wish”). At that time, I asked the governor’s office, through its website, if he had himself received the vaccine. Two weeks later, having received no reply, I rapidly drafted a freedom-of-information request (called Freedom of Information Law or FOIL request in New York State) and emailed it to both the governor’s office and the New York State Department of Health.

The two replies landed in my virtual mailbox a few days apart in January. The letter from the Executive Chamber of the State of New York said:

This letter responds to your correspondence dated January 12, 2021, which pursuant to FOIL, requested:

“the dates Governor Cuomo, members of his family, and immediate staff have received vaccines against Covid-19; and indicate in which group of priority recipients (according to the State of New York’s policies) they fall.”

To the extent your request is reasonably described, these records are not maintained by the NYS Executive Chamber.

Please be advised that even assuming such records were maintained by the Executive Chamber, they would be exempt pursuant to Public Officers Law § 87(2)(b) because, if disclosed, would “constitute an unwarranted invasion of personal privacy.

Additionally, pursuant to Public Officers Law § 87(2)(a), an agency may deny access to records or portions thereof that are “specifically exempted from disclosure by state or federal statute.” Accordingly, to the extent records may exist said records are exempt from production pursuant to Health Insurance Portability and Accountability Act of 1996, Public. Law 104-191 and New York State Public Health Law §18.

The reply from the Department of Health was not very different:

This letter responds to your Freedom of Information Law (FOIL) request of January 12, 2021, in which you requested “the dates Governor Cuomo, members of his family, and immediate staff have received vaccines against Covid-19; and indicate in which group of priority recipients (according to the State of New York’s policies) they fall.”

Please be advised, the records you are requesting, to the extent such records exist, contain protected health information (PHI) regarding the individuals referenced in your request. In accordance with New York State law and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Federal Law 45 C.F.R. §164.524), the Department requires a duly executed HIPAA authorization form in order to release PHI regarding any individual. We note your request was not accompanied by any HIPAA authorization forms.

Accordingly, your request is denied pursuant to POL §87(2)(a) as “specifically exempted from disclosure by state or federal statute” in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Federal Law 45 C.F.R. §164.524), and §87(2)(b), because disclosure “would constitute an unwarranted invasion of personal privacy.”

We now know that the governor himself waited his turn and received the vaccine in mid-March with much public fanfare.

The replies to my FOIL requests, however, show something interesting. One might have thought that privacy laws were meant to protect individuals against Leviathan’s lust for private information. But these laws seem to have been hijacked to protect the privacy of the rulers themselves. Perhaps actual governments don’t work as their ideal models?

Is “highjack” exaggerated? Consider the following. If, as current legal doctrine claims, ordinary individuals have no expectation of privacy when they enter an air terminal or cross the U.S. border or relate to their loving governments in certain other ways, why would political rulers have an expectation of privacy while they serve the people and sacrifice themselves for the “public good”?

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