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”?
READER COMMENTS
Craig
Mar 29 2021 at 4:56pm
By the time my wife was tested and received the results, frankly she would’ve either been getting better or been dead. In any event, while the preferential treatment for ‘testing’ generally is one thing, let’s also remember that somehow Trump got Regeneron monoclonal antibodies. That wasn’t even done on the down-low, apparently it was just given, right? I also hear stories about vaccine preference for members of our ‘federal aristocracy’ — but I digress.
Pierre Lemieux
Mar 30 2021 at 9:55am
Craig: Many Americans experienced situations like this. Giuliani also got preferential treatment and he boasted about it. As for the rulers’ vaccine privileges, we know Trump and his wife got the vaccine in January, not long before leaving the White House. Pence and Biden also got it among the first, in order to show the vaccine-less Deplorables that it was safe for them to get it—another sacrifice for the public good.
Peter Gerdes
Mar 31 2021 at 4:27am
At least Cuomo plausibly needs those benefits because it lets him do better as governor and thus save lives. Preferential treatment for Guliani is just inexcusable.
TMC
Mar 30 2021 at 1:59pm
No one would have complained if Cuomo got the shot early, sa it would have been seen as ‘leading’ reluctant people to also get the vaccine, just like Trump or Pence.
The issue was the preferential treatment for his relatives. I saw no stories where Trump’s sisters got the shot early.
Pierre Lemieux
Apr 1 2021 at 10:53am
Craig: Government failures are numerous, as Public Choice theory suggests.
Thomas Sewell
Apr 6 2021 at 5:57pm
Trump’s Doctor asked for and received a “compassionate use” exemption to use the Regeneron treatment. He wasn’t the first to get such an exemption for Regeneron, a few dozen others did before him. So he filed all the right paperwork.
Probably most people would’ve been granted the same exemption, if their Doctor decided to ask for it. Trump for sure got special treatment as the President, but that applies to every President’s care (he basically has a dedicated physician as well as a team on standby at the hospital). The fact that his doctor requested and got an exemption for Regeneron probably isn’t particularly special treatment, though. It was authorized for anyone for emergency use in November, 2019.
Now, if only Trump’s family/friends/supporters were able to get Regeneron waivers, that would be more comparable to the Cuomo situation.
Peter Gerdes
Mar 31 2021 at 4:25am
But shouldn’t we prefer that governors, their families and important people in the administration get first and easy access to vaccines and COVID tests.
Presumably, the reason we spend so much blood, sweat and treasure on elections is that it makes a lot of difference what choices elites in the executive branch make. Surely, either being sick themselves or having sick members of their immediate family would result in lower quality decisions about managing the pandemic and thus result in more extra infections than saving those resources for others would have saved.
The worst thing you can say about it is that it upsets the voters. Ok, maybe that’s a good reason not to advertise it.
Peter Gerdes
Mar 31 2021 at 4:36am
Though either way Cuomo deserves criticism. Either he didn’t really believe that priority COVID tests/prevention/vaccines for key leaders would save more lives overall (e.g. why Congress gets a nuclear bunker but not you or I) and he can be blamed for that. Or he did believe it saved lives but figured he could let some people die (in expectation) so he could have better PR by waiting and deserves blame for that.
Jon Murphy
Mar 31 2021 at 7:27am
What’s the mechanism by which if the politicians don’t get a vaccine first then worse decisions come about?
Pierre Lemieux
Apr 1 2021 at 10:33am
Peter: I think your last message is more realistic than the penultimate one. There is a danger in sacralizing elections or politicians: see my review of William Riker’s classic book at https://www.cato.org/regulation/spring-2021/populist-political-choices-are-meaningless. Don’t you think it would be better to err in the direction of the Venice procedure: https://www.econlib.org/a-humble-state-with-no-motorcade/?
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