from http://www.xbiz.com/news/video/135424
Judge Denies Cal/OSHA’s Request in Porn Investigation
By Lyla Katz
WASHINGTON — A Cal/OSHA investigation involving a porn performer has hit a roadblock after a judge denied the agency’s request to obtain identifying information of the performer’s production company.
The employee contracted HIV in 2009 in Los Angeles County and is only known as Patient Zero. Cal/OSHA subpoenaed the information from AIM Healthcare, which has since been shut down.
Patricia Ortiz, a Cal/OSHA spokesperson, told XBIZ that the division never sought the patient’s identifying information such as their name, personal medical records or HIV test results.
“Cal/OSHA’s goal is to identify the employer to address the HIV exposure,” Ortiz said.
She added that the agency remains concerned that employees in the adult industry continue to expose employees to sexually transmitted infections such as HIV as many employers don’t require the use of condoms.
But Alameda Superior Court Judge Winifred Y. Smith ruled that a patient’s privacy trumps the agency’s subpoena request, saying that Cal/OSHA offered no reason why it can’t prove a violation by looking into the records of film producers themselves.
“Even if the government agency itself has a duty to maintain the confidentiality of the information, constitutional privacy may bar the agency form obtaining the information,” the judge said.
“Cal/OSHA has not demonstrated, by evidence or argument, a compelling need for the information sought in the subpoena. Nor has it demonstrated that its subpoena is narrowly tailored to minimize the intrusion on plaintiff’s privacy issues.”
Ortiz said the agency is considering whether to appeal the ruling.
Looks like CAL/OSHA isnt the all powerdul group some claim…
What’s important to remember is that this case came about after CalOSHA wrongfully demanded information to which it was not entitled. Not only did CalOSHA attorney Amy Martin (whom performers will remember from the June 7th, 2011 meeting) and a herd of agency investigators invade AIM for an “unannounced inspection,” which “included a request to review medical records for [Patient Zero] and other patients,” CalOSHA also attempted to browbeat performers and other AIM clients into revealing both personal and professional information by attempting to question them as they exited the AIM clinic. According to a report in AVN, CalOSHA “also reportedly contacted relatives and roommates of adult performers in an attempt to gain information to which they may not be legally entitled.”
Patient Zero was forced to sue both CalOSHA and AIM to protect her medical privacy rights against unwarranted disclosure to CalOSHA officials.
California Health and Safety Code §120975 states that except in certain limited circumstances, “no person shall be compelled in any state, county, city, or other local civil, criminal, administrative, legislative, or other proceedings to identify or provide identifying characteristics that would identify any individual who is the subject of a blood test to detect antibodies to HIV.”
This ruling finds that CalOSHA’s subpoena does not fit any of the limited exceptions permitting disclosure of HIV test results. “CalOSHA argues that an administrative investigation subpoena is not a ‘proceeding’ within the meaning of Section 120975’s prohibition of disclosure in ‘any state, county, city, or other local civil, criminal, administrative, legislative, or other proceedings.'” However, the court concluded that “the express and limited exceptions in Chapter Seven [of the Health and Safety Code], such as those for public health officers and emergency services personnel, would be rendered meaningless if another governmental agency could obtain the information in the course of an investigation simply because no adjudicatory process [such as a court proceeding] had yet been initiated.”
Another important holding in this case is that, contrary to CalOSHA’s contention, AIM did NOT fit the definition of an “employer” simply because it engaged in performer testing and provided limited results in its producer database.
In the end, Judge Smith found that CalOSHA had not demonstrated a compelling state interest sufficient to justify the intrusion, and which cannot be served by alternative means less intrusive on fundamental rights. “CalOSHA has articulated three interests: (1) establishing whether AIM is an ’employer’ in the adult film industry; (2) identifying film producers who are exposing employees to serious health risks; and (3) monitoring and enforcing reporting requirements regarding exposure to bloodborne pathogens,” said the court. “CalOSHA has offered no logical nexus between individual test information or employment history of patients testing positive for HIV or other sexually transmitted diseases and the question of whether AIM fits the definition of an ’employer’ of Plaintiff. Nor does CalOSHA explain why the information sought here is necessary to, or even aids in, determining whether AIM fits the definition of ’employer’.”
“CalOSHA is limited to investigating employers and their agents,” the court wrote. “While CalOSHA has apparently obtained or confirmed information during the course of the instant litigation concerning AIM’s procedures, AIM’s relationship to film companies, and how those companies access AIM’s database, it is still apparently unprepared to offer any evidence that AIM meets any definition of ’employer’ under the statute or regulations as to Plaintiff or any other person whose information is sought by the subpoena. And while CalOSHA argues that AIM ‘required’ Plaintiff to undergo STD testing and ‘sen[t] her off to work for various adult film producers,’ the evidence cited by CalOSHA does not support these contentions.”
“Without evidence or persuasive argument to support its contentions, the Court cannot find that CalOSHA has a need, much less a compelling need, that would overcome Plaintiff’s privacy rights,” Judge Smith concluded. “As such, the analysis can end here, CalOSHA having failed to substantiate a [compelling] interest.”
Makes you think CalOSHA has a hidden agenda. Running into a health care organization with no warning makes me think they already had a end result in mind and just wanted to see their goal end result come out.
Generally when an agency does a surprise inspection its because you don’t trust the place being inspected to follow the rules. Like Parole Officers making a surprise inspection to catch ex-cons either not at home or doing something thats illegal. Same with health inspectors doing surprise inspections on a restaurant to make sure they aren’t slipping shoddy materials into the cooking or following cleanliness protocols.
What did CalOSHA hope to gain by running into AIM unannounced for a surprise inspection?
This is what happens when people entrusted with the public welfare listen to people like Michael “Iago” Weinstein, Dr. Paul “Mylanta” Tavrow and Dr. Peter “I’ll get those epidemic stats for you right away” Kerndt.
Cal-OSHA went into this at the urging of AHF, and when it did, it undertook its mission so with the pre-established belief that there was an epidemic, and massive malfeasance and/or criminality, and all the rest. This has not been an “investigation” that OSHA has undertaken, it is an effort to fish for facts and data to support their own conclusions — conclusions which were spoon-fed by AHF and which they swallowed far too easily for my liking. Like the idea that AIM constituted an “employer” in any sense of the word. Pure nonsense — and a horrible case of overreaching. And all at taxpayer expense!
These are not simply bureaucrats, they’re jack-booted bureaucrats. Cal-OSHA has willingly become AHF’s muscle; they’re Weinstein’s enforcers. They may not have sought the job, but my they’ve grown into the role and have played it with great gusto.
Cal-OSHA through AHF’s manipulative and biased “guidance” had the excuse to fine porn companies lots of money. Gay performers use so-called “protecive barriers” and have a much greater prevalence of “HIV”, but bareback sex provides OSHA the excuse to cash in whenever there’s a bogus, so-called “outbreak”.
All you hear on the news is how much the state of CA is hurting and how they need a bailout, can’t pay state workers, etc.
CalOSHA is going to fool around and eventually cause the studios to pack up and move to another state and lose even more money.
Like it or not, the porn industry produces a lot of money for them. Why is the state not stepping in about some of their abusive practices or some of their stupid ideas, like the bio waste disposal idea.
From what I understand, there’s no need to move porn out of State, Kelli, if condom legislation passed. All companies have to do is make sure performers work as “independent contractors” and not hired as “employees”.
It’s not just about condoms though. Here is from an AVN story just posted today “under threat of fines ranging from $10,000 to $25,000 and higher, to make all of their movies with condoms, dental dams, rubber gloves and face shields in all sex scenes, “
Yeah, that’s retarded. Reminds me of the Naked Gun scene when Priscilla Presley and Leslie Nielsen make love with body size condoms. But again, as I said, as long as companies are paying us the same day, no taxes taken out (as independent contractors) we’re out of those fools’ jurisdiction and there’s no problem, right?
Not necessarily. Not as far as Cal-OSHA’s concerned.
I forgot, but how did Patient Zero get HIV+ and wasnt Tom Moore the director on the shoot and Seth Dickens one of the quarantined talent? As for Weinstein, well his batting average looks like its getting damn close to Mike South’s. I cant figure out why Weinstein is fighting this war, AHF allegedly has $160 million on the books, only has to spend 5% according to Federal Law…and that includes administrative costs, unless he’s getting paid well, too well and needs to look like he’s making a difference. This could all be about this shithead justifying being overpaid.
Patient Zero got it offset. Right before she got diagnosed she did that scene with Seth Dickens, and maybe someone else, I don’t remember if it was a b/g or whatever. They were also seeing each other offset before the scene, and after the scene before they found out about her status. Either way she didn’t get it during a scene and she didn’t pass it on to anyone in the industry. Cal/OSHA is really out of line on this one.
CalOsha could give a fuck. They’re just doing whatever it takes to get Shelley to quit calling. It speaks to the the annoying power of the lord.