MDCH: Mich. attorney general should investigate release of man’s HIV status

Under scrutiny: Lansing City Attorney Brigham Smith.

LANSING — The Michigan Department of Community Health is calling on city officials to request an investigation by the Michigan attorney general’s office into the release of a man’s HIV status related to arrests made during a controversial sex sting in May.

“They should call the attorney general’s office to request that they conduct an independent investigation, if they want to handle this the right way,” said James McCurtis, a MDCH spokesman.

McCurtis said his department is not an enforcement agency and is not authorized to initiate formal investigations.

McCurtis said the investigation should encompass not only Lansing City Attorney Brigham Smith, who authorized the release of the sensitive information, but also the city’s police department which conducted the undercover operation.

McCurtis said the inclusion of the man’s HIV status in unredacted police reports raises concerns that other private medical information in such reports might be released to the public.

“Anytime medical information is released, it is a concern,” McCurtis said.

Michigan Messenger, along with Lansing’s City Pulse newspaper, the Lansing Association for Human Rights and the Detroit-based Triangle Foundation sought the arrest reports as part of a Freedom of Information Act request seeking documents relating to the May 22 undercover gay sting operation in Fenner Nature Center on the city’s southeast side.

After a series of information request denials, Lansing City Attorney Brigham Smith released the documents requested earlier this month. Buried in one of the released incident reports was the HIV-positive status of one of the two men arrested in the undercover operation.

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 state law, disclosure of an HIV-positive status is acceptable only by public health officials under very specific conditions, including the treatment of the patient, partner notification and to protect the health of the individual.

The man arrested for indecent exposure in the nature center and has since pleaded guilty to the charges. Michigan Messenger is not identifying the man in question due to privacy concerns related to his HIV status.

Lansing Mayor Virgil Bernero is standing by his city attorney.

“With regard to HIV status, I assume Brigham will follow all relevant laws, but will double check. I don’t believe any malicious intent was involved,” he said in an email to Michigan Messenger.

“The City neither has any plans to call for an AG investigation, nor does it believe that the comments of one person at MDCH amount to the Department itself requesting an investigation by the AG,” Smith wrote in an email to Michigan Messenger. “The City stands by its release of the documents [Michigan Messenger] requested in [its] FOIA.”

The Lansing Police Department is standing its ground too.

“We at the LPD take these matters very seriously, and are glad to have such matters handled by our capable City Attorney,” said Lt. Noel Garcia, a department spokesman.

The call by the MDCH was hailed by the the Michigan chapter of the American Civil Liberties Union. In an email to Michigan Messenger, Jay Kaplan, staff attorney for the Michigan ACLU’s Lesbian, Gay, Bisexual and Transgender Rights Project, wrote:

They ACLU of Michigan supports the MDCH’s recommendation for an independent investigation of the circumstances surrounding the release of HIV status information, as part as the May undercover sting. We hope that such an investigation will shed some light regarding why this information was released and point out where policies and practices need to be modified to ensure that this does not happen again.”

Penny Gardner, president of LAHR, said she is pleased with the MDCH’s call for an investigation by the attorney general, but still furious over the release in the first place.

“To divulge one’s HIV status in a police report, and circulate it in response to a FOIA request, is clearly against the law of decency, and in fact against the law of Michigan,” Gardner said. “Further, it is an indication of a much bigger problem than entrapment. It indicates a lack of knowledge of the law, and even worse, in the case of the Fenner [Nature Center sting] operation, it is a deeply homophobic act. LAHR applauds the … Department of Community Health for calling for an investigation into this illegal disclosure.”

Mark Peterson, an HIV advocate from Detroit and a member of MI POZ Action, also praised the Michigan Department of Community Health’s call for an investigation. In an email, Peterson said:

“MDCH is right to take this seriously. I echo their concern that the Attorney General should investigate to see if disclosure confidentiality violations occurred. Many people are aware of the mandatory HIV disclosure law that is placed on the HIV positive individual and the requirement to disclose their HIV status to sex partners. Many others are keen to prosecute fully anytime apparent violations of this occur. It’s perhaps time that breach of HIV confidentiality laws are prosecuted as vigorously.”

Calls to the office of Michigan Attorney General Mike Cox were not returned on Monday.