fenner with ribbonLANSING — Michigan Attorney General Mike Cox on Friday exonerated Lansing City Attorney Brigham Smith in a probe into the release of a man’s HIV-positive status, which sparked questions of whether medical privacy laws were violated in a case involving an undercover sex sting in a city nature center.

In a letter dated Aug. 28, David Tanay, chief of the attorney general’s criminal division, told Lansing Mayor Virgil Bernero there was no criminal wrongdoing. “As there is a reasonable argument to support the disclosure, a criminal violation of the [Public Health Code] would not be supported,” Tanay wrote. “Accordingly, we are closing the file on this matter.”

Bernero asked Cox’s office to investigate the release of the man’s HIV-positive status last month.

The release came as a part of a Freedom of Information Act request by Michigan Messenger, Lansing’s City Pulse newspaper, the Detroit-based Triangle Foundation and the Lansing Association for Human Rights.

The documents were requested as part of an investigation into a controversial sex-sting operation conducted in May by the Lansing Police Department in Fenner Nature Center. The investigation found that Jan Kolp, a member of the Lansing Board of Police Commissioners who lived near the nature center, had requested the operation.

The nature center has long been a source of complaints of illicit sexual activity by men who have sex with men, but police had never been able to verify the complaints, Chief Mark Alley said in a July 1 meeting of the Lansing City Council’s Public Safety Committee. Police arrested two men on charges of indecent exposure during the May operation.

One man pleaded guilty to disorderly jostling, and the second man pleaded guilty, then retracted and again pleaded guilty to indecent exposure.

Contained in the incident report of the arrest of one of the men taken into custody was the his HIV-positive status. According to the reports, undercover police officers lured the man from the park to a local apartment complex where he was apprehended on the indecent exposure charge, and upon searching the man’s car found his HIV medications. Police questioned him about the medications and he disclosed he was HIV-positive and had been for 18 years.

Officers noted in the arrest report that the man indicated in a conversation before his arrest that he was “clean.” Officers contend in the report that “clean” is street slang for not having any sexually transmitted infections, and more specifically HIV.

When questioned about this by the arresting officer after the HIV-positive disclosure, the man said he was cleaner than the undercover officer, noting the officer’s appearance.

Michigan Messenger is not disclosing the identity of the men arrested because of concerns about his medical privacy.

Tanay, in his letter, used the self disclosure after the arrest and compared it with the alleged denial of infection prior to the arrest, noting that the “veracity” of the report, which he identified as “an unconfirmed statement,” was in question.

“The disclosure was not a test result or similar definitive medical finding of the HIV status of the individual, but rather the purported statement of a suspect,” Tanay wrote.

Advocates have argued the disclosure violated a stringent state law making it a misdemeanor to disclose an individual’s HIV status.

“That was illegal,” said Penny Gardner, president of the LAHR, regarding the release of the man’s HIV status during testimony at the Lansing City Council’s Public Safety Committee on July 1.

Jay Kaplan, staff attorney for the Lesbian, Gay, Bisexual and Transgender Project of the ACLU of Michigan, took the ruling from the attorney general to task.

“It appears that the AG is narrowly interpreting Michigan’s HIV Confidentiality (MCL 333.5131) law to apply only to an actual test result or definitive medical finding of HIV status,” Kaplan said. “While the beginning language of MCL 333.5131 refers to reports, records and data pertaining to HIV status, language throughout the rest of the statute refers to “information pertaining to HIV infection” and we believe that a statement by the arrestee that he is HIV positive would fall within that language. Thus, we do not agree with the AG’s narrow interpretation of what is protected under this statute.”

The ruling also determined that Ingham County Prosecutor Stuart Dunnings III had a “well founded” reason to redact the HIV status information from the report’s release on July 9.

“We don’t view the AG’s opinion as a green light to law enforcement agencies to release police reports containing information about HIV status and strongly encourage these agencies to redact such information when they are releasing reports, unless the request for this information falls within an exception under MCL 333.5131,” Kaplan said.

The Lansing Police Department already have a policy preventing the release of HIV related information, but Smith told Michigan Messenger last week he was not obligated to follow their policy.