Fire Lawyer Sues FDNY for Release of Medical Information

A former FDNY firefighter and now practicing attorney, Peter J. Gleason, has filed a comprehensive, 18-page lawsuit in Federal court against City of New York, FDNY, former Battalion Chief George Belnavis,  Lieutenant Edward Boles, Fire Marshal Brian Grogan , Captain Patrick Reynolds, former Fire Commissioner Nicholas Scoppetta and the Uniformed Fire Officers Association alleging that the defendants tried to discredit his campaign for City Council in 2009 by releasing  his confidential medical records to the press to show that he spent most of his ten year tenure with the department on medical leave.

The complaint includes a “Preliminary Statement” that explains the basis for the suit and is quoted here at length [Note that the bullet points and the paragraph breaks are mine – added to make it a bit easier to read]:

• Plaintiff is a retired firefighter now admitted to practice law in New York. This action, is based on the New York City Fire Department (FDNY) and its officials’ unlawful search, seizure, and subsequent publication and public dissemination of Plaintiffs confidential medical records and information derived therefrom in retaliation for Plaintiff acting as legal counsel for a plaintiff in an action against the FDNY. The FDNY acts as legal custodian of medical records of former firefighters maintained in a depository in Kings County.
• Firefighters have constitutionally protected liberty and property interests in the confidentiality of their medical records that are protected from unlawful searches and seizures, publications and public disseminations, and deprivations without notice and a meaningful opportunity to be heard. These medical records are confidential and protected from unlawful government search and seizure and public dissemination by federal statute and by the Fourth Amendment to the U.S. Constitution. Additionally, Plaintiff has a property interest in the medical records protected by the Due Process Clause of the U.S. Constitution. Defendants owe firefighters a duty of care to maintain the confidentiality of such records.
• In early 2006, Plaintiff filed a notice of claim against the FDNY and certain of its officers on behalf of William Kregler, who was also a retired firefighter. Kregler claimed that the FDNY violated his First Amendment rights by retaliating against him by terminating his application for appointment to the position of City Marshal because of his public support of Robert Morgenthau who was then a candidate for District Attorney. Kregler v. City of New York, 375 Fed.Appx. 143 (2d Cir. 2010).
• On or around July, 2009, Plaintiff was a candidate for City Council for the First Councilmanic District (lower Manhattan). As part of the process, Plaintiff sought the endorsement of the Uniformed Fire Officers Association. During an interview with officers of that Association, Plaintiff was bombarded with hostile questions regarding his representation of Kregler.
• Shortly thereafter, on or around August 19, 2009, the FDNY unreasonably searched and seized Plaintiff’s confidential medical records without a search warrant. The FDNY then released Plaintiffs medical records to the Village Voice, a supporter of Plaintiff’s principal political adversary. By releasing Plaintiff’s confidential medical records, the FDNY intended to and did retaliate against Plaintiff for speech that is constitutionally protected; inflicted an adverse employment action on Plaintiff; maliciously inflicted extreme emotional, financial and reputational damage upon Plaintiff; and substantially interfered with Plaintiff’s rights of political association, public association, and liberty to effectively represent the individuals and entities of his choice guaranteed by the First Amendment to the United States Constitution.
• The unlawful search, seizure, publication and public dissemination was arbitrary, served no legitimate governmental interest and was motivated solely by a desire to punish Plaintiff for his representation and to serve the FDNY’s political animus and that of individual defendants named in this action. Defendants also republished the Village Voice article to firefighters by forwarding a link via email blast.
• In accessing Plaintiff’s medical records without court authorization and without any legitimate government interest and then publishing Plaintiff’s medical records, the FDNY wanted to punish Plaintiff for his representation of a client and did so, effectively destroying his candidacy and damaging his reputation. The FDNY’ s behavior was extreme and outrageous, warranting punitive damages. Four aggravating factors show an absence of mistake and calculated malice.
• First, the FDNY released the records shortly prior to the election in such a manner that Plaintiff would not have the time to respond to or correct misleading published statements.
• Second, the FDNY released the records to a Village Voice reporter known for vitriolic personal attacks on political adversaries. The FDNY’s leak was a dirty trick that effectively destroyed Plaintiffs political campaign and sent a chilling message to any former firefighter willing to speak out against the FDNY.
• Third, the FDNY’s retaliation against Plaintiff is extreme and outrageous because it shows contempt for judicial proceedings and a willingness to use confidential medical records for unlawful purposes and to reward its officers engaging in such illegal conduct.
• Fourth, the FDNY’s retaliation is part of a municipal policy and a pattern and practice of retaliation against former and current firefighters who exercise their First Amendment and other Constitutionally-protected rights.

The suit alleges HIPAA violations, as well as due process (liberty and property deprivations), First Amendment, and Fourth Amendment violations. It seeks compensatory damages, punitive damages, costs and attorneys fees.

Here is a copy of the complaint filed on August 17, 2012. Gleason v Scoppetta