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. 

Southern California has a lot to be proud of in its LGBT community, but the reverse is also true: the LGBT community in Southern California can take pride in the region it calls home. After all, we have a rich history of being at the forefront of LGBT rights.
A quick list: Harry Hay founded the Mattachine Society, the first lasting gay rights organization, here in Los Angeles in the winter of 1950. The first publication devoted to LGBT issues — ONE— also originated right here in 1953.

The L.A. Gay & Lesbian Center was the first LGBT organization in the United States to be granted tax-exempt status by the IRS.
And the first openly gay judge ever appointed to the bench —Stephen Lachs — was appointed to the Los Angeles Superior Court in 1979.

We’re also lucky to have a number of leaders in the local LGBT community who have been fighting for years to protect our rights and improve the lives of LGBT people here and nationwide. To recognize some of these people, last week KCET and Union Bank continued a long tradition of highlighting some of our wider community's "Local Heroes" by selecting its inaugural class of LGBT honorees.

The ACLU of Southern California is proud that our own deputy executive director, James Gilliam, was one of the five people chosen. James directs our Seth Walsh Students’ Rights Project, which we launched yesterday. The other nominees included David Damian Figueroa, Vice-President of Communications and Development at MALDEF; Alex Fukui, Co-Chair of API Equality-LA; Karina Samala, Chair of the City of Los Angeles Human Services Commission Transgender Working Group; and Marquita Thomas, President of the Los Angeles Gay and Lesbian Chamber of Commerce. Profiles of all the nominees are available on KCET’s website.

It’s a powerful list of historic firsts – and of hardworking LGBT Pride Month Local Heroes. That’s something Southern California’s LGBT community can be proud of.

Administration’s acknowledgement of severe S-Comm flaws highlights need for Moratorium and TRUST Act

In response to mounting criticism, the Department of Homeland Security announced today changes to the misnamed "Secure Communities" (S-Comm) deportation program. While the Administration’s announcement acknowledges grave problems in S-Comm’s design and implementation, it falls far short of the moratorium on the dysfunctional program that an increasing number of lawmakers and advocates have demanded.

Reactions follow; background information regarding growing opposition to S-Comm is at bottom of press statement.

Professor Bill Ong Hing, immigration law expert at the University of San Francisco, commented: “The fact is, under our Constitution, immigration is a federal responsibility. Neither a state like Arizona, nor the Federal government itself, can force local governments to act as immigration agents. Such measures compound the injustices of our deeply broken immigration system - and public safety and local resources are among the first casualties.”

California Assemblymember Tom Ammiano, author of California’s TRUST Act, which allows local governments to opt out of the flawed program, added: “Today’s announcement by ICE is simply window dressing.  How many more innocent people have to be swept up by the ironically named Secure Communities program before the Obama administration will change course?  Talking about the need for comprehensive immigration reform is not an excuse for continuing with a flawed, unjust program that is having tragic consequences for communities across the country.  It is time for a moratorium on S-Comm pending a real review of the program not just PR spin from ICE.”

The following is a statement on behalf of California organizations Asian Law Caucus, the ACLU of California, the Coalition for Humane Immigrant Rights of Los Angeles, the California Immigrant Policy Center, and NDLON:

"We are deeply disappointed by the inadequacy of the Administration’s response to the mounting body of evidence that the “Secure” Communities program is damaging public safety and ensnaring community members. The painful stories of domestic violence victims and other innocent community members facing deportation thanks to S-Comm underscore that the program has simply gone off the rails.

While today's announcement acknowledges that problems exist with the program, the measures outlined by the Administration are a far cry from workable solutions these problems.

To announce “reform” before review is an exercise in politics, not policy. The administration should suspend the program and wait for the Inspector General report in order to develop fair and transparent policies. 

Before vital relationships between local law enforcement and immigrant communities are furthered damaged, before more domestic violence victims, street vendors, family members, and workers who are merely striving for the American dream are swept up for deportation, S-Comm must be reigned in.

For the sake of public safety and transparency, we need real solutions. We strongly support California’s TRUST Act, which sets safeguards the federal government has failed to implement and allows local governments out of S-Comm, and we continue to call for a national moratorium on this fundamentally flawed program.”

Background: In recent weeks, Illinois, New York, and Massachusetts have either pulled out or refused participation in the program while numerous local governments have sought a way out of a deportation dragnet which harms public safety and has operated with no transparency or local oversight. Meanwhile, California’s TRUST Act passed the state Assembly (47-26) in May and the Senate Public Safety Committee this week (5-2). The bill would reform California's participation in S-Comm, assuring local governments’ ability to opt and setting basic standards for jurisdictions that do choose to participate

Simultaneously, pressure has grown at the Federal level. The deployment of S-Comm has been mired with misrepresentations and has led the Department of Homeland Security Office of the Inspector General (OIG) to look at whether administration officials misled localities about the ability to opt out. The Congressional Hispanic Caucus  and  Congressional Progressive Caucus have both called for a moratorium on the program. Seven California Congressmembers from the Los Angeles area have also called for the state to suspend its participation in the program, while House minority leader Pelosi has called S-Comm a “waste of taxpayer dollars.”

Background information on the Secure Communities program is available here.