The Litigation That Never Was...
And why it never came about...
On 9 September 2021, a small number of federal employees from some of our most powerful institutions formed Feds for Medical Freedom to fight mandated mRNA injections. Since that time, the organization was renamed Feds for Freedom (F4F) and the members have refocused their energy on addressing the underlying issues that led to mandates: failures of accountability and integrity, and a desperate need for leadership reform.
Most of our readers are aware of F4F’s successful litigation levied against the federal government and the nationwide injunction that Boyden Gray and Associates navigated on behalf of F4F. The Department of Justice (DOJ) managed to convince the Supreme Court to vacate the successful lower court rulings, but not before the pandemic and mandate had been administratively terminated. The merits of the case were never heard and for all intents and purposes, DOJ lost that battle.
So, F4F saved jobs and lives, but the government can do it again…
F4F will be ready.
We need to be vigilant. Our public health apparatus has closely monitored H5N1, purchasing millions of units of mRNA injections to deal with the supposed threat. They started injecting livestock with the experimental and costly shots, and have also begun human trials with a Moderna version of H5N1 mRNA injections.
The WHO declared Monkeypox a public health emergency of international concern, but do not worry. Dr. Demetre Dakalakis is leading our nation’s defense against the dangerous scourge…
No really.
There is absolutely no cause for concern.
Demetre’s goofy visage, which has been thrust on us like so many other ridiculous, cartoonish DEI hires from the Biden administration, is just another psyop meant to discourage hope. We already survived the biggest psyop in history, making it all too clear that this second-rate ding-a-ling isn’t dangerous … unless your dressed in up like Scooby Doo.
Supporters of F4F proposed a number of viable litigation plans in 2021 and 2022, but given our resources, we had to be selective. Two weeks ago we published a FOIA result related to one avenue of legal attack we had considered executing. The Privacy Act of 1974 and The Health Insurance Portability and Accountability Act (HIPAA) of 1996 have very strict rules related to Personal Identifiable Information (PII), Personal Health Information (PHI), and Individually Identifiable Health Information (IIHI).
The strict regulatory requirements and the “warp speed” velocity of action, meant that federal bureaucrats habituated to working at the pace of bureaucracy, often cut corners that legally could only be cut by… the consumer.
That mattress tag belongs to you.
When we get a product or service, the law requires that consumers know what is being purchased. The medical industry has even more protections designed to ensure there is informed consent and private information is not inadvertently shared.
The law requires that one is provided an opportunity to read and understand what is on the mattress tag. The tag and everything on it are yours to do with as you please. It is up to you when and if you remove the mattress tag. If you are a consumer and your data is being included in an information system, you can choose to decline even if it is buried in the user agreement’s fine print.
At least in our country… for now.
Official systems storing PHI, IIHI, and PII must be designated in advance and meet strict cyber security requirements. I think everyone in F4F knew a supervisor who kept a spreadsheet on their desktop listing vaccinated and unvaccinated personnel. It was a matter of convenience, right?
… Can’t institute reeducation programs if you aren’t tracking the dissidents.
Did the federal government break the law?
Did the federal government comply with Privacy Act and HIPAA requirements to collect, process and store injection-status data? If the answer is no, then the administration and every government agency is at risk of financial and criminal liabilities.
A previous Substack discussed the axiom that speed almost always comes at the expense of quality … and safety. A vast majority of Americans wanted the government to act during the pandemic, quickly and decisively. There are numerous, heterogenous lines of evidence indicating that the pandemic’s status as an emergency was over-stated and propped up by government propaganda.
Problem, reaction, solution… ~ Hegelian dialect.
In the administration's rush to demand COVID-19 compliance, it did not provide adequate control over the administrative processes that support collection and storage of information. It left PHI, IIHI and PII unprotected in unofficial systems. The Safer Federal Workforce Taskforce (SFWTF) was overly fixated on increasing vaccination rates within the federal workforce and did not appear to take the business risks associated with collection and storage of medical information seriously.
Their mistake.
What should have happened?
Compliance with the Privacy Act is pretty straight forward. When the federal government collects, processes and stores information that will be part of an official record, the agency must determine if a System of Record Notice (SORN) is required. The agency may elect to start with Privacy Threshold Analysis (PTA) and Privacy Impact Analyses (PIA), to ensure the to-be-collected data will be appropriately protected based upon classification and access control measures. If a SORN is required, there is a process by which a federal agency executes the necessary steps to instantiate the new database before collecting information. The SORN gets published in the Federal Register, while Congress and the public are afforded advance notice and opportunity to provide comment. The SORN notifies appropriate government offices, officials, and oversight that a database has been created and is being used to store sensitive material.
HIPAA is a Federal law that instituted far-reaching health insurance reforms and medical privacy protections. Title 1 of HIPAA included limited, Federal protections improving the availability and continuity of health coverage for workers and their families. Under certain conditions, this law guarantees the availability of new health coverage with no exclusions for pre-existing conditions for individuals who lose employment-based health coverage due to changes in employment or family status.
Does it seem reasonable to assume that all of the various processes were adequately addressed… during an emergency where federal employees were scuttled off to work from home? If your answer was no, you were correct.
How did the federal government try to hide the violations?
They claimed vaccination status was not covered under the Privacy Act or HIPAA. Does that sound correct to you? If you answered no, you were correct again.
What are “Other” records?
The subject of “Other” records, in addition to a number of other legal violations, were covered in a previous Substack, but to ensure ease of readability pertinent details are included below.
Many federal government employees expressed concerns related to HIPAA violations. Every agency developed their own version of a Vaccine Exemption Evaluation Committee to process religious and medical exemptions. These committees required employees who sought a vaccine exemption to submit supporting materials to explain their request. Again, this was a new process brought in solely to deal with vaccine mandates.
Agency guidance advised staff that the determinations about the employees' exemption request, which included PHI, IIHI, and PII, required recording and storing this information in some type of format. Every agency had a system in place to collect and store the data; however, there are numerous documented and anecdotal examples of this information was being stored on spreadsheets and haphazardly transmitted between managers.
Hundreds of employees, including myself, asked if our vaccination records were considered covered under HIPAA and if those records were going to be shared with other coworkers or offices. The Office of Privacy and Civil Liberties (OPCL) advised employees that vaccination status was not a covered entity under HIPAA.
This is incorrect if said records are being used for adjudication purposes.
HHS documentation explains:
Individuals have a right to access this PHI for as long as the information is maintained by a covered entity, or by a business associate on behalf of a covered entity, regardless of the date the information was created; whether the information is maintained in paper or electronic systems onsite, remotely, or is archived; or where the PHI originated (e.g., whether the covered entity, another provider, the patient, etc.)
As it relates to the review process, whether religious or medical in focus, personnel on these RA committees make decisions about accommodation requests using the vaccination records and health information provided by the employees. When agencies also have their own medical staff, like DOS and DHS, they also include a medical officer from their respective medical offices in the adjudication process. This makes the committee and the data a legally covered entity under HIPAA law. It is not necessary that a medical officer be involved to make the adjudication process a covered entity, it simply makes it less debatable.
The RA committee waiver review process generates and documents PHI, Individually Identifiable Health Information (IIHI), or Personally Identity Information (PII). This process must be fully documented in a computer system with an approved SORN, PIA, and/or Federal Information Security Modernization Act (FISMA).
What HIPAA language specifically supports the supposition that these vaccine records are PHI?
Information Included in the Right of Access: The Designated Record Set
Individuals have a right to access PHI in a "designated record set." A designated record set is defined at 45 CFR 164.501 as a group of records maintained by or for a covered entity that comprises the:
Medical records and billing records about individuals maintained by or for a covered health care provider;
Enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan; or
Other records that are used, in whole or in part, by or for the covered entity to make decisions about individuals. This last category includes records that are used to make decisions about any individuals, whether or not the records have been used to make a decision about the particular individual requesting access.
What decisions were being made by various agencies utilizing a determination drawn from an RA or a Medical Accommodation (MA) for vaccination and PHI falling into the other records category?
Training, TDY, and PCS opportunities were denied to those who were unvaccinated.
What did F4F do?
We came up with a strategy and executed.
In order to determine if violations had been made, F4F volunteers conducted the following activities:
Checked public records for proper establishment of SORNs.
Submitted FOIA requests for PIA and FISMA documentation.
Collected internal Agency and Department documentation.
Requested access to medical records from the Office and Privacy and Civil Liberties (OPCL) and/or appropriate office.
Gathered anecdotal evidence where possible.
The results are in… at least some of them.
What did F4F find?
One volunteer pulled publicly available information detailing SORN publications in the federal record. One year ago, it was clear that new databases to support the mass collection of PHI had not been established and it also appeared that PIAs had not been properly executed. F4F has a volunteer continuing to pull new information as it becomes available.
FOIAs submitted to a number of different agencies and departments demonstrated PIAs were not filed or not filed on time. There was confusion related to what employee documentation might need special handling and the NASA FOIA discussed in a previous Substack appeared to indicate that the administration knew there may be mandates as early as April 2020. This also appeared to corroborate an April 2020 conversation Jeffrey Tucker, founder of the Brownstone Institute, had with Rajeev Venkaya, a well-connected pharmaceutical industry insider and the former Special Assistant to President Bush for Biodefense. The details of that conversation and F4F’s interview with Jeffrey Tucker was included in our most recent Podcast episode.
We received our most recent FOIA result from the Department of Labor (DOl) on 15 August 2024. We submitted the request on 13 March 2023. This will be the subject of a future Substack. In addition to showing that DOL had not completed a PIA or other necessary regulatory requirements, the FOIA demonstrated that DOL administrators believed medical rights did not extended to federal government employees. An excerpt from the FOIA is included below.
“I get there may be confusion since we collect vaccine information from federal employees. However, federal employees' information is considered public information so the collection or rather the ability to ask/maintain/store their vaccine information does not trigger as many privacy protections as members of the public. This is another reason Vaxtrack (sp) did not require a privacy impact assessment and privacy threshold assessment, since it only collected information from federal employees.” ~ DOL Bureaucrat…
F4F members requested access to their personal vaccine-medical records and made internal inquiries at their agencies and departments to ascertain is those records had been transmitted. F4F collected a multitude of policy guidance from a number of different agencies and departments, clearly showing a non-uniform application of mandates.
If that weren’t enough, F4F also garnered the support of pro bono expert witnesses with technical backgrounds sufficient to discuss the technical, administrative, and legal backdrop.
The F4F team did an admirable job, despite being resource and human capital poor. After two years of research and work, F4F can definitely state there were legal violations ripe for litigation.
The million dollar question I am sure you are all pondering….
If F4F has enough information to potentially bring a case to court, why hasn’t the organization done so?
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