Attorney general’s ruling on HIV disclosure case prompts medical privacy worries

Attorney General Mike Cox and State Sen. Gretchen Whitmer

LANSING — A letter from the office of Michigan Attorney General Mike Cox exonerating Lansing City Attorney Brigham Smith of any criminal wrongdoing in the public release of an arrested man’s HIV-positive status has activists and political leaders up in arms.

“This is just scary,” said State Sen. Gretchen Whitmer, a likely candidate for the Democratic nomination for attorney general in 2010. “Attorney general opinions are supposed to give us clarity. This does not do that. This impacts all of our rights.”

The East Lansing lawmaker said the opinion clearly violates the “legislative intent” of state laws, specifically a stringent state law which makes it a misdemeanor to disclose a person’s HIV status — positive or negative — except under very narrow conditions.

“We need to take action to make sure we can’t impinge on those rights” to medical privacy, Whitmer said, adding that she’s considering introducing legislation to address the opinion from the AG’s office, but was not hopeful the Republican-controlled Senate would address the issue.

Jay Kaplan of the American Civil Liberties Union of Michigan has said the attorney general’s decision is troublesome.

Some activists have taken aim at Cox, a Republican candidate for the governor.

“Mike Cox is playing politics and playing to his base, which is homophobic,” said Phil Volk, chair of the state’s Democratic Party Lesbian, Gay, Bisexual, Transgender and Ally Caucus. “Some of the politicians in Lansing need to rethink doing that to LGBT people.”

“I’m angry at this,” Volk said. “If we need to be up [in Lansing] with nonviolent protests, we will be.”

And Volk was not alone is claiming the attorney general’s decision was political.

“The release of someone’s medical information — whatever the source — is quite simply wrong and in most cases, a violation of the law,” said Julie Nemecek, co-director of Michigan Equality, a Lansing-based statewide LGBT organization. “The attorney general’s suggestion of a ‘reasonable explanation’ for this act is an attempt to provide legal cover for Lansing and political cover for Mr. Cox’s political ambitions.”

Calls to Cox spokesman Matt Frendeway seeking comment from the attorney general were not returned.

“I don’t understand how the attorney general, who is supposed to protect the people and uphold the law, could justify not redacting this explicitly protected information from any public document,” said Debbie De Leon, chairwoman of the Ingham County Board of Commissioners. “I am no attorney, but it is incredibly obvious to me that this is as illegal and morally irresponsible as it can get. This misguided decision flies in the face of justice.”

This HIV disclosure controversy arose following an investigation into a May 22 undercover sex-sting operation in Fenner Nature Center by the Lansing Police Department’s special operations unit. That operation led to the arrest of two men, each charged with a single count of indecent exposure. One man pleaded guilty to a lesser charge of disorderly jostling, while the second man pleaded guilty, retracted his plea, then ultimately pleaded guilty again to the charge of indecent exposure.

Michigan Messenger, which has closely examined the case, is not disclosing the names of the men arrested to protect the privacy of the HIV-positive man.

The sting operation had been triggered by a complaint by Jan Kolp, a member of the Lansing Board of Police Commissioners, which oversees the operations of the department, sets policy and budget priorities and handles nonjudicial punishment for officers. While police say they had received complaints for the past 20 years of illicit sexual activity in the 130-acre nature center, the department had never documented any such activity in the park.

Michigan Messenger, along with Lansing’s City Pulse weekly newspaper, the Lansing Association for Human Rights and the Detroit-based Triangle Foundation, filed a joint Freedom of Information Act request for documents and correspondence related to the undercover operation, a request that was denied by both the Lansing city attorney and the city council president.

But the city attorney did eventually release the requested documents, which included the HIV-positive status of one of the men arrested.

In a separate FOIA request, Ingham County Prosecutor Stuart Dunnings III released the police report in question, but redacted the man’s HIV information, citing a clause in the FOIA law allowing redaction of information which is “a clearly unwarranted invasion of personal privacy.”

Advocates called the release of the HIV information a crime, citing the misdemeanor provisions of the Michigan Public Health Code.

“… [W]ith thorough due diligence, the Lansing City Attorney could have followed the same steps used by the Ingham County Prosecutor and preserved the privacy of one more fellow citizen,” Alicia Skillman, Triangle Foundation’s executive director, wrote in an email.

Lansing Mayor Virgil Bernero, while standing behind the city attorney, asked the attorney general to investigate whether release was unlawful.

In his request to the attorney general, Bernero wrote:

I have serious concerns about the propriety of releasing this information, concerns I share with many members of the community. In particular, although I realize FOIA has a policy of broad disclosure, I want to ensure that release of this information did not violate the Health Insurance Portability Accountability Act (HIPAA) or the Michigan Public Health Code, 1978 PA 368 (MCL 333.1531) [sic] and to obtain your guidance for future reference.

Although the City Attorney has opined that this FOIA release violated neither HIPAA nor the Public Health Code, I believe an independent investigation by your office is warranted. I hereby request that you independently investigate this matter to determine whether the release of this information pursuant to FOIA violated either HIPAA or the Michigan Public Health Code. [emphasis in original]

Smith said that while he is happy the attorney general concurred with his understanding of Michigan law, he intends to create a new policy to prevent the release of private medical information in the future.

“As to the instant matter, the Attorney General and I both have independently reached the same conclusion that the statute does not apply,” Smith wrote in an email. “I am comfortable that this is the correct legal outcome, but this still leaves many policy issues to address with the working group.”

Smith has directed staff in the office of the city attorney and others handling FOIA requests to provide additional review of documents containing medical information. He said those documents would like be redacted. The direction is in effect until a policy can be developed and implemented, Smith said.

The Lansing Police Department already has a policy which specifically prevents the release of HIV information. That policy cites not only the Michigan FOIA law, but also the Michigan Public Health Code.