YNOT – A California superior court this week blocked a subpoena the state’s Occupational Safety and Health Administration served on now-defunct Adult Industry Medical Healthcare Foundation. The subpoena sought employment and medical information about “Patient Zero,” a female performer who in 2009 tested positive for HIV yet somehow managed to perform in one hardcore adult production without the industry standard health clearance from AIM. In addition, the state agency wanted personal information and health records for all other adult performers who received testing or treatment from AIM prior to its closure.
Alameda Superior Court Judge Winifred Smith ruled the subpoena violated privacy rights of adult performers under U.S. and California constitutions and relevant legislation. The judge issued a permanent injunction prohibiting Cal/OSHA from seeking confidential health records, medical information and personally identifying information associated with Patient Zero.
In its defense, Cal/OSHA argued that in signing confidentiality waivers allowing adult content producers to view their test results, performers tested by AIM gave up all expectation of privacy for their personal data.
However, the Smith ruled Patient Zero and other performers retained reasonable expectation of privacy, especially since Cal/OSHA had not “demonstrated by evidence or argument a compelling need for the information sought in the subpoena.”
The court’s action is the latest development in proceedings by Cal/OSHA to regulate workplace safety on adult production sets. Adult industry trade association Free Speech Coalition blames many of Cal/OSHA’s recent actions on Los Angeles-based mainstream AIDS advocacy and treatment organization AIDS Healthcare Foundation, which has been outspoken in its desire to see condom usage mandated on all adult film sets. AHF has filed a number of complaints about the industry in general and AIM in particular with state and local health authorities. Earlier this week, AHF announced its intention to appeal a California appellate court’s ruling that LA County’s health department could not force condom usage on adult performers based solely on AHF’s now-debunked contention adult films comprise “an acknowledged epidemic of sexually transmitted diseases.”
Regarding Smith’s ruling, attorney Karen Tynan, who specializes in OSHA litigation and has represented several adult companies, told FSC, “This ruling is a bit of a bittersweet victory, since AHF has brought about the demise of AIM. However, this shows that AIM was properly and legally protecting patient privacy at all times.”
Since 2009, AHF has relentlessly campaigned to mandate condoms and other barrier protection on adult production sets. The nonprofit organization continues to assert that sexually-transmitted infections in the performer population present a clear and present danger to public health. To date, AHF has filed lawsuits and legal complaints against adult production studios, talent agents and LA County Health, in its attempt to force a condoms-only policy within the adult entertainment industry.
FSC, along with Tynan, industry stakeholders and compliance experts, has been working with Cal/OSHA to arrive at industry appropriate regulations for workplace safety.
Recognizing the gap left by the closure of the AIM clinic, FSC is developing an alternative solution. The industry trade association believes Adult Production Health & Safety Services will ensure STI-testing protocols protect the safety of performers. Tynan has been tapped to serve as legal advisor for the APHSS advisory committee when the program is launched.
“New procedures and plans for industry medical testing and protection of performer privacy will be consistent with the legal analysis and conclusions offered by Judge Smith,” Tynan said.
