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In June, the Federal District Court in Detroit ruled that Michigan’s confidentiality law, which subjects those who reveal HIV testing information and medical files to potential criminal and civil actions, does not apply to “government entities.”
The lawsuit stems from an Aug. 3, 2012 traffic stop. Shalandra Jones and her then-fiance were stopped by Dearborn Police Officer Eric Lacey. Lacey stopped the couple because the vehicle allegedly had a burned out brake light. As he discussed the situation with the couple, he claimed to smell marijuana. Jones produced a small amount of marijuana, and Lacey requested and received permission to search the vehicle.
During his search, Lacey found Jones’ HIV medications. Dashcam video of the incident shows Lacey telling Shalandra Jones that she should disclose her HIV-positive status whenever a police officer asks her to step out of a vehicle. He said he was “pissed” that Jones hadn’t disclosed her status before he searched the vehicle, and he told the couple: “Honestly, if it wasn’t for that, I don’t think I would have wrote anybody for anything. But that kind of really aggravated me, you know what I mean? You got to tell me right away, ‘I’ve got this. I’ve got that.’ ‘Cause at that time, I wasn’t wearing any gloves.”
Legal experts say there is no legal obligation in Michigan for a person with HIV to disclose his or her status to a police officer.
She was ticketed for marijuana possession — a criminal misdemeanor. City officials attempted to prosecute Jones for the marijuana possession despite her qualifying for a medical marijuana defense. Officials repeatedly offered to drop the criminal charge if Jones would sign a waiver of civil rights and agree not to sue the city, Moore said at the time.
Lacey made repeated statements expressing his fear of being infected with HIV or other diseases after coming in contact with the woman’s earrings, which were in her purse, during the search of the couple’s vehicle. At other points, however, he seemed to say that he understood that he was not at risk for contracting HIV. He expressed concerns about the possibility of being exposed to contaminated needles in the course of his search, but he did not find any needles in the vehicle. He also said he was worried about taking diseases home to his family.
The American Independent News Network filed a Freedom of Information Act request with the city of Dearborn for the dashboard video of the incident, and subsequently published that video. In the video, Jones’ HIV status is revealed.
Jones’ attorney, Joshua Moore of Detroit Legal Services, argued the release of the video, unredacted, violated Michigan’s confidentiality law. The court disagreed.
Judge Laurie Michelson ruled that the law only applies to a person, which does not include a common definition of government agencies. She further ruled that there was no evidence that a person was involved in releasing the video, and thus the HIV status, under the FOIA request, but rather it was a government entity which released the information.
“We are disappointed that the District Court, in effect, has gutted Michigan’s HIV confidentiality law,” Moore told POZ Magazine last week. “Under this ruling, government entities, which are most likely to possess the names of people living with HIV, are not subject to criminal sanctions if they identify a person with HIV. That’s dangerous for people living with HIV, and it’s important Michigan’s Legislature address this immediately.”
And he is not alone in challenging the decision.
“It is disappointing that the Court finds that Michigan’s confidentiality law does not pertain to governmental entities,” Jay Kaplan, staff attorney for the LGBT Project of the ACLU of Michigan, told the newsmagazine. “However, a governmental entity could still be held liable for releasing medical information and information about a person’s HIV status under both HIPAA and the constitutional guarantees of privacy (in the instance of the booking sheet), particularly where the facts demonstrate that the aggrieved individual has not publicly disclosed their HIV status. And you’re correct that when you file an FOIA that it is the discretion and determination of the local governments as to what they will release, and this could result in them releasing information that she shouldn’t. However there can be legal consequences for this.”
State health officials said the ruling would have no impact on the state Department of Health and Human Services handling of HIV information, which would remain confidential.
Jones and the city of Dearborn have settled the discrimination lawsuit, although conditions of the settlement are not known at this time.