There is no Fourth Amendment reasonable expectation of privacy in VA medical records, vis-a-vis another government agency. United States v. Grant, 2020 U.S. Dist. LEXIS 27270 (N.D. Cal. Feb. 18, 2020):
Here, it is highly doubtful that Mr. Grant had a subjective expectation that his VA medical records would be kept private from another government agency. The VA’s Notice of Privacy Practices in effect at the time explicitly stated that “[w]e may disclose your health information to law enforcement agencies for law enforcement purposes when applicable legal requirements are met” – with one law enforcement purpose being identified as “[r]esponding to a specific request when in pursuit of a focused civil or criminal law enforcement investigation.” Highsmith Decl., Ex. 1 (Notice at 3, 5) (emphasis omitted). Cf. United States v. Cooper, No. CR 05-0549 VRW, 2005 U.S. Dist. LEXIS 39116, at *15-18 (N.D. Cal. Dec. 28, 2005) (in a case where the government charged defendant with making false statements on a FAA form based on medical records it obtained from the Social Security Administration, holding that defendant “could not have expected that his medical information would be held in a level of confidence that would implicate the protection of the Fourth Amendment”; noting that form completed by defendant as part of his SSA application for disability benefits indicated that disclosure could be made to other agencies for purposes other than making a determination on the disability claim).
Mr. Grant protests there is no evidence in the record that he actually received the VA’s Notice (or that “veterans in general actually review” it), Reply at 5; however, Mr. Grant also does not deny that he received the Notice. Mr. Grant further argues that, per the Notice, disclosure is permitted to law enforcement only “when applicable legal requirements are met” and that such legal requirement means the Fourth Amendment. But that phrase does not expressly or clearly implicate the Fourth Amendment. Mr. Grant’s argument is problematic because it presupposes that the Fourth Amendment is applicable — and here, the government’s point is that the protections afforded by the Fourth Amendment are triggered only where there is a legitimate expectation of privacy in the first place. Mr. Grant’s argument begs the central question.
No such reasonable expectation obtains here. Even if Mr. Grant did “harbor an expectation of privacy, the [C]ourt finds that [his] expectation of privacy is not one that society is prepared to accept as reasonable.” Cooper, 2005 U.S. Dist. LEXIS 39116, at *20. …