ALAMEDA COUNTY, Calif.—In an Order issued today, California Superior Court Judge Winifred Y. Smith granted the preliminary injunction sought by "Patient Zero," the adult industry performer who was found to be HIV-positive, though the infection appears not to have been acquired during work in an adult movie.
In Patient Zero's Motion, the person (who has asked not to be identified even by gender) sought to restrain the California Occupational Safety and Health Administration (CalOSHA) from obtaining any information about him/her and other adult performers from the AIM Healthcare Foundation, which had performed the original HIV test on the patient.
At issue were subpoenas issued by CalOSHA in mid-June seeking, among other things, "information regarding patients who have tested positive for HIV, as well as other communicable diseases, from January 1, 2004, to June 17, 2009, as well as test dates, names and contact information for each production company for which the patient worked, and dates of work." The agency not only wanted the "code identifier" for each STD-positive patient which it could then attempt to cross-reference with the Doctors First Report of Occupational Illness or Injury which AIM is required to file with the Los Angeles County Department of Health, but also the actual names of the patients involved.
AVN has received reports from numerous sources that representatives of CalOSHA have already attempted to browbeat performers and other AIM clients into revealing both personal and professional information by attempting to question them as they exited the AIM clinic. They have also reportedly contacted relatives and roommates of adult performers in an attempt to gain information to which they may not be legally entitled. It is such attempts at "undercover" investigation that in part gave rise to Patient Zero's complaint.
"CalOSHA does not appear to be acting within its jurisdiction in subpoenaing patient-identifying information from AIM," Judge Smith ruled. "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.' CalOSHA is charged with, among other things, investigating 'causes of any employment accident that ... results in a serious injury or illness, or a serious exposure, unless it determines that an investigation is unnecessary.' ... 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. 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."
CalOSHA, in its response to Patient Zero's Complaint, has argued that AIM "may be considered a 'creating' or 'correcting' employer-entity" charged with creatingor correcting workplace hazards in the adult industry, but Judge Smith also rejected that interpretation.
Likewise, the judge rejected the agency's claim that AIM somehow gave permission for Patient Zero to work in an adult production even though the patient was HIV-positive, ruling that such "permission" would in any case be the province of the adult producer, 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 Hlv-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," the judge said. "Plaintiff has demonstrated a likelihood of success on the merits of that the subpoena here violates state statutes and impermissibly intrudes on Plaintiff's privacy rights under the California and United States Constitutions."
At issue in part is California Health and Safety Code Sec. 120975, which prohibits any HIV testing agency from revealing the results of such test, even in the face of an otherwise duly-authorized subpoena. The Code also provides for criminal penalties for any unauthorized disclosure of such information.
"CalOSHA does not point to any exception to section 120975 that would apply to its investigatory subpoena for this information," Judge Smith wrote, "nor has this court found any."
Absent such legal authority to discover Patient Zero's health information, Judge Smith found that the Plaintiff had demonstrated a likelihood of prevailing on his/her claim should the case come to trial, and therefore granted the preliminary injunction.
"The balance of relative harms tips strongly in favor of granting Plaintiff interim relief to prevent CalOSHA from obtaining this information and to prevent AIM from disclosing it to CalOSHA," the judge concluded. "Once Plaintiff's identifying information is revealed, the disclosure cannot be undone. The harm to CalOSHA, or to its investigation efforts to protect workers from exposure to workplace hazards, is attenuated, as there appear to be a variety of other options for CalOSHA to carry out its investigation and fulfill its mandate without obtaining individual-identifying information."
Free Speech Coalition (FSC), which has been following the case closely, expressed relief at Judge Smith's ruling.
"Judge Smith confirmed what we have known for a while, that CalOSHA is over-reaching its jurisdiction on what looks like a witch hunt focused on the adult entertainment industry," said Diane Duke, FSC Executive Director. "AIM patients and Patient Zero can rest a little easier today but the fight is not over yet. FSC, AIM and the industry must continue work together to push back when these overzealous and over-reaching government bureaucrats wage war on the adult entertainment industry."
Duke also expressed the industry's appreciation for the first-rate work of attorneys Karen Tynan, who represents AIM in the controversy, and Lori Rifkin of the ACLU of Southern California, who represents Patient Zero.