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Singapore Ministry of Health v. Farrera-Brochez

United States District Court, E.D. Kentucky, Central Division, Lexington

November 25, 2019

SINGAPORE MINISTRY OF HEALTH, Plaintiff,
v.
MIKHY K. FARRERA-BROCHEZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, Chief Judge United States District Court

         Plaintiff Singapore Ministry of Health (“MOH”) has filed a motion for summary judgment and entry of a permanent injunction to prevent Defendant Mikhy Farrera-Brochez (“Brochez”) and his agents from making further attempts to obtain or disclose confidential information wrongfully obtained from the Government of Singapore. [Record No. 32');">2');">2');">2] Because MOH has established that Brochez invaded its privacy by obtaining and disseminating confidential health records, MOH's motion for summary judgment will be granted. Additionally, Brochez, his agents, and those working in active concert or participation with him will be permanently enjoined from making additional attempts to acquire or disclose MOH's confidential information.

         I.

         Brochez is an American citizen who resided in Singapore between 2');">2');">2');">2008 and 2');">2');">2');">2018. [Record No. 9-1 at ¶¶ 13, 2');">2');">2');">23] During that time, Brochez was involved in a relationship with Ler Teck Siang (“Ler”), a Singaporean doctor who was the head of MOH's National Public Health Unit from March 2');">2');">2');">2012');">2');">2');">2 to May 2');">2');">2');">2013. Id. at ¶ 16. Ler was one of a very limited number of individuals who had access to MOH's Human Immunodeficiency Virus Registry (“HIV Registry”), which contained the confidential health information of approximately 14, 2');">2');">2');">200 individuals diagnosed with HIV. Brochez obtained the HIV Registry, likely as a result of Ler's mishandling of the information, and began disclosing its contents to others by 2');">2');">2');">2016. Id. at ¶ 2');">2');">2');">20. [See also Record No. 1-2');">2');">2');">2, pp. 3-4.]

         Brochez was deported from Singapore in April 2');">2');">2');">2018 after completing a 2');">2');">2');">28-month prison sentence for fraud and drug-related offenses. Id. at ¶¶ 2');">2');">2');">21, 2');">2');">2');">23. Following his return to the United States, Brochez continued to share the ill-gotten information, which included the registrants' names, unique identification numbers, contact information, HIV test results, and related medical information, with various people, the press, and United States agencies. Id. at ¶¶ 2');">2');">2');">28-31. [See also Record Nos. 1-1 MOH Statement (Feb. 13, 2');">2');">2');">2019), 1-3 Facebook post (undated), 1-4 Vice News article (Feb. 13, 2');">2');">2');">2019), 1-5 Straits Times article (Feb. 2');">2');">2');">2, 2');">2');">2');">2019).] In addition to the HIV Registry, Brochez obtained and disclosed a list of HIV-positive individuals who were scheduled for medical check-ups in Singapore's Changi Prison Complex (“the Prisons list”). [Record No. 9-1 at ¶ 40]

         The MOH instituted this action in February 2');">2');">2');">2019 seeking an injunction requiring Brochez to remove and/or surrender any remaining confidential information and to refrain from making further disclosures of it. This Court entered a temporary restraining order and later a preliminary injunction granting the relief sought. [Record Nos. 10, 2');">2');">2');">20, 2');">2');">2');">24] Brochez submitted an affidavit on March 2');">2');">2');">29, 2');">2');">2');">2019, stating that “all information obtained from the Singapore Government has been, or will be, deleted.” [Record No. 2');">2');">2');">27-1]

         Brochez was indicted on criminal charges arising out of these incidents on March 7, 2');">2');">2');">2019. [See Lexington Criminal Action No. 5: 19-055-DCR.] Following a two-day jury trial held in June 2');">2');">2');">2019, Brochez was convicted of all charges: two counts of sending a threatening e-mail to extort things of value from the Government of Singapore and one count of transferring and possessing a means of identification of another person in connection with threatening interstate communications. He was later sentenced to concurrent terms of 2');">2');">2');">24 months of imprisonment on each count.

         MOH filed a motion for summary judgment and for a permanent injunction in this matter on August 2');">2');">2');">29, 2');">2');">2');">2019. [Record No. 32');">2');">2');">2] Specifically, MOH requests judgment in its favor regarding its invasion-of-privacy claim and seeks to ensure that Brochez will delete, remove, and/or return all confidential information and will make no attempts to access or disclose it in the future. Brochez did not respond MOH's motion.

         II.

         Summary judgment is appropriate when “the pleadings, discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 17');">477 U.S. 317, 32');">2');">2');">23-2');">2');">2');">25 (1986); Chao v. Hall Holding Co., 2');">2');">2');">285 F.3d 415');">2');">2');">2');">285 F.3d 415, 42');">2');">2');">24 (6th Cir. 2');">2');">2');">2002');">2');">2');">2). A dispute over a material fact is not “genuine” unless a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 2');">2');">2');">242');">2');">2');">2');">477 U.S. 2');">2');">2');">242');">2');">2');">2, 2');">2');">2');">247-48 (1986). The determination must be “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 2');">2');">2');">251-52');">2');">2');">2; see Harrison v. Ash, 10');">539 F.3d 510, 516 (6th Cir. 2');">2');">2');">2008).

         Typically, once a moving party has met its burden of production, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Keeneland Ass'n, Inc. v. Earnes, 830 F.Supp. 974, 984 (E.D. Ky. 1993) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). But when the nonmoving party fails to respond to a motion for summary judgment, the Court still must determine whether there are any genuine issues of fact and whether the moving party is entitled to judgment as a matter of law. In the absence of a response by the nonmoving party, however, “the court may rely on the moving party's unrebutted recitation of the evidence, or pertinent portions thereof, in reaching a conclusion that certain evidence and inferences from evidence demonstrate facts which are uncontroverted.” Guarino v. Brookfield Twp. Trustees, 2');">2');">2');">2d 399');">980 F.2');">2');">2');">2d 399, 403 (6th Cir. 1992');">2');">2');">2).

         MOH seeks summary judgment on its claim of invasion of privacy. In Kentucky, invasion of privacy can take on various forms. See McCall v. Courier-Journal & Louisville Times Co., 2');">2');">2');">23 S.W.2');">2');">2');">2d 882');">2');">2');">2');">62');">2');">2');">23 S.W.2');">2');">2');">2d 882');">2');">2');">2, 887 (Ky. 1981). MOH claims that Brochez invaded its privacy by intruding upon its seclusion and by bringing unreasonable publicity upon the private lives of others. While it is nearly certain that Brochez brought unreasonable publicity upon the private lives of individuals included in the HIV Registry and the Prisons list, those individuals are not plaintiffs in this action. MOH has not explained why it has standing to bring invasion-of-privacy claims on their behalf, so the Court will focus on the claim that Brochez's actions constituted an intrusion upon MOH's seclusion.

         Kentucky has adopted the standards set forth in the Restatement. Accordingly, to prevail on this claim, MOH must show an intentional intrusion by the defendant into a matter the plaintiff has a right to keep private which is highly offensive to a reasonable person. Restatement (Second) Torts § 652');">2');">2');">2B (1976); Zhang v. Western Ky. University, No. 2');">2');">2');">2011-CA-2');">2');">2');">287-MR, 2');">2');">2');">2012');">2');">2');">2 WL 4464448, at *9-10 (Ky. Ct. App. Sept. 2');">2');">2');">28, 2');">2');">2');">2012');">2');">2');">2); Smith v. Bob Smith Chevrolet, Inc., 2');">2');">2');">275 F.Supp.2');">2');">2');">2d 808');">2');">2');">2');">275 F.Supp.2');">2');">2');">2d 808, 82');">2');">2');">22');">2');">2');">2 (W.D. Ky. 2');">2');">2');">2003). Examples include an unauthorized investigation into an individual's private concerns such as opening private mail, searching a person's safe or wallet, examining a person's bank account, or presenting a forged court order to permit inspection of personal documents. Restatement (Second) Torts § 652');">2');">2');">2B cmt. b.

         Without question, personal health information such as HIV test results constitutes a private concern of those included in the HIV Registry. However, MOH has established that the information contained in the HIV Registry constitutes its private concern, as well. As the plaintiff points out, privacy in HIV testing is a recognized public concern under Kentucky law. The General Assembly has concluded that “the public health will be served by facilitating informed, voluntary, and confidential, use of tests designed to detect [HIV].” KRS § 2');">2');">2');">214.181(1) (emphasis ...


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