ACLU client fought release of medical records to state agency

(Los Angeles) – A judge has ruled that the compelled release of HIV test records of adult film performers to state investigators would violate state and federal privacy guarantees.

The ACLU and the law firm of Davis Wright Tremaine LLP represented an adult film performer, dubbed “Patient Zero”, who tested positive for HIV in 2009.  Patient Zero was tested at Adult Industry Medical (AIM) Health Foundation, which runs a voluntary testing program where performers are tested every 30 days for sexually transmitted diseases and HIV.  Following media reports that an adult film performer had tested positive for HIV, the California Division of Occupational Safety and Health (CalOSHA) served a subpoena on AIM seeking test records that would have identified Patient Zero’s name and positive HIV status.

Judge Winifred Smith ruled last week that the clinic’s disclosure of the information would violate California’s laws protecting the confidentiality of HIV test results, as well as state and federal constitutional rights to privacy.  The judge found that Patient Zero had the right to expect that HIV test results would remain private, and that CalOSHA had no right to obtain that information.  The court also ruled that CalOSHA ignored less intrusive solutions to investigating the transmission of HIV in the adult film industry such as industry education or on-site inspections of film shoots.

“You don’t give up your right to medical privacy because of what you do for a living,” said Peter Eliasberg, Legal Director for the ACLU of Southern California.  “Names of those testing positive are already reported to state and local health agencies – the only ones who need to know.  The disclosure of HIV test results to any agency requesting them would be a public health disaster.  HIV isn’t a run-of-the-mill public health concern; thirty years into this epidemic, an enormous amount of stigma and misunderstanding still surround a positive result.  The indiscriminate release of test results would only frighten many from ever getting tested in the first place.”

Patient Zero was represented by Elizabeth Gill of the ACLU of Northern California, Peter Eliasberg of the ACLU of Southern California, and Jennifer Brockett and Aleah Yung of Davis Wright Tremaine LLP.  The case is Patient Zero v. California Division of Occupational Safety and Health.