July 7, 2009

MI- Release of Lansing sex sting police reports raises concerns about disclosure of HIV status

7-7-2009 Michigan:

Critics say details of arrested man's health should have been redacted; unauthorized release of such information may be unlawful

LANSING — Buried at the end of one of the arrest reports from a controversial May 22 sex-sting operation in the capital city’s Fenner Nature Center is information that one of the men arrested was HIV positive. That disclosure, experts say, may have violated the state’s confidentiality laws protecting the identity of those who are infected with the virus.

In an email to Michigan Messenger, Jay Kaplan, staff attorney for American Civil Liberties Union of Michigan’s LGBT project, wrote:

I can find nothing in MCL 333.5131 that would permit the Lansing Police Department to disclose through their incident report the HIV status of the individual arrested. Since this police report is a public record, the information regarding his HIV status should have been redacted and absent his express authorized permission to disclose, or a court order, this information should not have been included in the report you were given.

The report was released last week after a battle over a Freedom of Information Act request between city officials and a coalition of groups and media outlets, including Michigan Messenger, seeking details on the sex sting.

Contained in the report was a narrative of the incident which lead to the arrest, as well as an interview with the defendant.

For privacy concerns related to HIV status, Michigan Messenger is not disclosing his identity of the arrested man, who has pleaded guilty to one count of indecent exposure.

According the incident narrative, the arrested man allegedly exposed himself in a wooded area to the undercover officer and agreed to have a three-way sexual encounter with the officer and a fictitious friend named “Bill.” During the conversation about the proposed group sex, the accused allegedly asked whether the officer’s friend was “clean,” referring, according to the police officer, to whether the men were HIV negative.

The officer responded that both he and “Bill” were “clean” and asked the accused if he was as well. The accused, according to the arrest report, said: “Oh yeah.” After this, the officer had the accused follow him to an “apartment” on Kalamazoo Avenue. The accused man was then arrested. During a search of the man’s vehicle, police found “several containers of medication” and when they asked the accused, he informed them he was HIV-positive and had been for 18 years.

While it is a crime in Michigan to engage in sexual penetration, however slight, without first disclosing one’s HIV-positive status, the accused was not accused of violating that law, or any of the other criminal laws involving penetration or sex acts which require disclosure of HIV status in public records.

Under Michigan law, unauthorized disclosure of a person’s HIV status can be not only a civil issue, but could result in criminal action. Under the law, disclosure of an HIV positive status is acceptable only by public health officials, and under very specific conditions, including the treatment of the patient, partner notification and to protect the health of the individual.

Lansing City Attorney Brigham Smith authorized the release of the police reports and the man’s HIV status. Smith told the Lansing City Council’s Public Safety Committee last week that the disclosure was not illegal, because the federal Health Information and Portability Act (HIPA) did not apply to the city.

“That was illegal,” said Penny Gardner, president of the Lansing Association for Human Rights, when she addressed the Public Safety Committee hearing. LAHR is one of the groups that signed onto the original FOIA request for information into May’s sex sting.

Mark Peterson, a member of the Michigan Positive Action Coalition, and HIV advocacy group, issued the following statement about the situation to Michigan Messenger:

I think that this situation highlights the continued stigma that having HIV still has. This story is one of taking an action that may be considered as prurient and even making it more salacious by adding HIV to the mix. There is no reason whatsoever that I can think of that would warrant the police from asking about or including this man’s HIV status in any public record. I’m not a lawyer, but this looks to me like a violation.

Why is it somehow OK to release the individuals HIV status without written permission here? What would have happen if they searched his car and found medications for asthma and diabetes? Would they have then reported, “Mr. Doe, an asthmatic diabetic, was …

It’s NOT OK to violate our state laws regarding protection of HIV status disclosure. HIV is a virus not grounds for assuming criminal behavior. Those of us living with HIV deserve adequate health care, not to be criminalized because of a virus. What’s next, viral policing?

While Lansing City Council members would not discuss the particular case, all three who attended the Public Safety Committee meeting last week expressed concern about the broader implications of disclosure of HIV status in police records which might become public.

“I would like to see some policies and procedures put in place on how and what information is put into a police report,” said Eric Hewitt, who represents Lansing’s First Ward.

Carol Wood, who is an at-large member of City Council and mayoral candidate, said she did not feel she had enough information to comment.

Sandy Allen, who represents the city’s Second Ward which includes Fenner Nature Center, said she too would like to see some policies come out of the situation.

“I don’t know why [someone's HIV status] should be [in a police report],” Allen said. “Personally, I don’t think it should be.” ..Source.. by Todd A. Heywood

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