Patient Zero Scores Health Privacy Victory for Adult Industry

ALAMEDA COUNTY, Calif.—A California Superior Court judge has issued an order granting the motion for preliminary injunction filed by attorneys for Patient Zero, the adult industry performer who was found to be HIV-positive in early June. The order prohibits the California Division of Occupational Safety and Health (CalOSHA) from receiving and the Adult Industry Medical (AIM) Healthcare Foundation from releasing any information which would lead to the disclosure of the identity of Patient Zero and/or any of his/her health information. (Even disclosure of Patient Zero's gender was part of the protective order.)

However, in a stunning victory for adult performers in general, Judge Winifred Y. Smith's order goes much further than simply protecting Patient Zero's privacy; it also prohibits CalOSHA from "compelling or seeking to compel the disclosure of confidential medical records, HIV test information, and personal identifying information of Plaintiff and other patients of AIM without the specific written authorization of such patients." [Emphasis added]

The case arose from administrative subpoenas issued by CalOSHA seeking disclosure by AIM of everyone who tested positive for HIV or any other sexually transmitted infection (STI) between Jan. 1, 2004 and June 17, 2009, "as well as test dates, names and contact information for each production company for which the patient worked, and the dates of [such] work." Although the subpoena, which was not approved by any judge, sought only a "code identifier" for each STI-positive performer that could be cross-referenced with the records AIM provides of such infections to a division of the Los Angeles County Department of Health, Judge Smith recognized that the disclosure of such information "would readily lead to specific identification of the individuals."

Beyond that, however, Judge Smith found that CalOSHA had far exceeded its authority in issuing the subpoena.

"CalOSHA does not appear to be acting within its jurisdiction in subpoenaing patient-identifying information from AIM," the judge wrote in her Oct. 15 order. "The California Occupational Safety and Health Act of 1973 was enacted to assure safe and healthful working conditions for all workers by authorizing investigation and enforcement of standards. ... Section 6314 of the Labor Code authorizes CalOSHA to investigate and inspect any place of employment, within reasonable limits, to carry out its mandate."

"Plaintiff is concededly not an employee of AIM, and CalOSHA is admittedly not investigating the safety of AIM's employees, but of adult film industry employers," the judge continued. "CalOSHA is limited to investigating employers and their agents. ... There is no apparent need for identifying information of Patient Zero, or of patient-identifying information generally, for the purposes of investigation of AIM as an employer."

What is actually at issue is a perception, which AIM founder Dr. Sharon Mitchell has attributed to officials at the L.A. Department of Health, that AIM has a complete list of all adult productions taking place in the Los Angeles area, and a complete cast list for each production. Hence, CalOSHA argued to the court that AIM is a "creating" or "correcting" employer-entity under the Labor Code, arguing that the fact that AIM tests for STIs, that some of those tests come back as positive, and that AIM then contacts other performers who may have been exposed to the infected performer, means that AIM is "responsible for creating or correcting a hazard to employees in the adult film industry." However, as the court noted, the section of the Labor Code to which CalOSHA refers, Sec. 6400(b), specifically addresses "multiemployer worksites," and the court found no evidence that that term applies to AIM.

"CalOSHA argues that it needs to determine whether or not it is true that Plaintiff was permitted to work in an adult film after receiving a positive HIV test result from AIM," wrote Judge Smith, interpreting one of CalOSHA's arguments. "Logically, permission to work on the film was a matter in the control of the adult film employer, not AIM. Giving the green light to CalOSHA to begin an investigation not by seeking information about the practices of the employers in question, but by demanding information from a medical clinic about HIV-positive patients and where they work, would appear to open a Pandora's box of government inquiry into highly sensitive medical information with only the barest of connections to workplace safety."

At issue are both the federal Health Insurance Portability and Accountability Act (HIPAA) as well as California's own Health and Safety Code, both of which prohibit the disclosure of identifying information about HIV-positive citizens. CalOSHA claimed that the California Code of Regulations gives it the authority to access medical records as part of its investigation, but the court noted that the Code specifically protects a person's "rights under the Constitution of the United States, the Constitution of the State of California,[] or the Labor Code," all of which require that a patient give affirmative consent for his/her medical records to be released to the agency.

Further, "Disclosure of Plaintiff's HIV status and identifying information would clearly be a violation of section 120975" of the California Health and Safety Code, the court ruled. "CalOSHA does not point to any exception to section 120975 that would apply to its investigatory subpoena for this information, nor has this court found any."

The court also dismissed CalOSHA's argument that the release which performers give to AIM to convey their HIV/STI status to potential employers was sufficient to allow the agency to discover that same information, noting that the law—specifically, Sec. 120980(g) of the Health and Safety Code—requires that each provision of medical information to a third party be accompanied by its own release from the patient.

In general, the court found that Patient Zero had demonstrated a likelihood that AIM's compliance with CalOSHA's subpoena would violate the patient's constitutional rights, and that the agency had failed to provide any evidence of a "compelling governmental interest in obtaining the information despite that privacy interest."

"In its opposition to the motion, CalOSHA has articulated three interests: (1) establishing whether AIM is an 'employer' in the adult film industry, which CalOSHA says requires employment history for Plaintiff and others in order to identify film producers who are exposing employees; (2) identifying film producers who are exposing employees to serious health risks; and (3) monitoring and enforcing reporting requirements regarding exposure to bloodborne pathogens," Judge Smith summarized. "CalOSHA has not demonstrated that the information sought is necessary to these goals, nor that the subpoenas are narrowly tailored to meet them."

Instead, the court suggested, CalOSHA could simply seek "a list of all production companies whose employees tested positive for HIV or any other sexually transmitted disease," and that it didn't need Patient Zero's medical records to do that. Further, the court cautioned, "Once Plaintiff's identifying information is revealed, the disclosure cannot be undone."

Hopefully, Judge Smith's ruling will also halt CalOSHA's attempts to obtain the health history information it claims it needs by trying to interrogate performers entering or leaving AIM's testing facilities, and attempting to contact and question performers' family members and housemates, some of whom were not even aware that the performer in question was in the adult entertainment industry. However, CalOSHA may still appeal the ruling to California Court of Appeals. If so, look for further analysis of this case at