Doe v. Department of Veterans Affairs, et al.

(Amicus) Federal Privacy Act case brought by a federal employee after a workplace doctor revealed his HIV status to a co-employee without his permission.

Summary

An employee (“Doe”) at a Department of Veterans Affairs (VA) facility in Minneapolis revealed his HIV status on a medical history form and discussed that information with a physician at his workplace. Without authorization, the physician revealed that private information to a coworker of Doe’s. Doe sued under the federal Privacy Act, which prohibits disclosure of information contained in records. The trial court granted summary judgment to the employer, ruling that the disclosure did not violate the Act because the physician did not “retrieve” the information from a medical record, but rather from his memory, and the Eighth Circuit Court of Appeals had interpreted the Act as only prohibiting disclosure of information that has been retrieved “initially and directly” from a “record.” On behalf of several HIV service and advocacy organizations, Lambda Legal filed a friend-of-the-court brief in support of Doe’s appeal, but the federal appeals court affirmed the trial court’s decision. Doe filed a petition for a review by the full Court (rehearing en banc), which we supported with another friend-of-the-court brief.

The facts in this case appeared to provide ample motivation for the federal appeals court to revise its prior decision, which reduced protections under the federal Privacy Act. The “retrieval rule” applied by the courts, in this case, is not set forth in the Act. Some courts have found that the Act is violated when the author of a record discloses information the author learned and recorded in the course of creating the record, but the appeals court refused to adopt that approach.

Context

People living with HIV continue to experience stigma and discrimination because they have HIV and therefore confidentiality protections are very important. Laws designed to protect confidentiality, such as the federal Privacy Act, must be applied so as to not impede their protective functions.

Lambda Legal’s Impact

Lambda Legal’s brief explains the harms associated with unauthorized disclosure of HIV-related medical history and how those harms illustrate the importance of the protections guaranteed by the Privacy Act. The brief also explains that a decision prohibiting the author of a confidential record from sharing the record’s confidential information is consistent with both the language and protective purpose of the Privacy Act.