FSC Applauds Court’s Decision on Performer Privacy

CANOGA PARK, Calif.—Alameda Superior Court Judge Winifred Smith this week issued a decision blocking Cal/OSHA’s subpoena for information in the 2009 case of “Patient Zero.” The state regulatory agency had subpoenaed now-defunct Adult Industry Medical Healthcare (AIM) for employment and medical information of Patient Zero, an adult performer, as well as all other adult performers who had received testing or treatment at AIM. Judge Smith pointed out in her decision that Cal/OSHA’s request for information violated privacy rights of adult performers under the U.S. and California constitutions. The judge issued a permanent injunction prohibiting Cal/OSHA from subpoenaing the confidential health records, medical information and personal identifying information of Patient Zero. CalOSHA had argued that because adult performers tested at AIM had signed waivers allowing adult producers to view their test results that they had given up expectation of privacy. However, the judge found that Patient Zero, as well as other performers, had reasonable expectation of privacy, and that 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, largely spurred on by complaints filed by AIDS Healthcare Foundation (AHF). 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,” she added. Since 2009, AHF has relentlessly campaigned to mandate condoms and other barrier protection on adult production sets. The nonprofit HIV/AIDS organization continues to assert that sexually-transmitted infections in the performer population present a public health threat of “epidemic” proportions, citing data presented by LA County Health officials. To date, AHF has filed lawsuits and legal complaints against adult production studios, talent agents and LA County Health, in its attempt to force its condom-only agenda on the industry. FSC, along with Tynan, industry stakeholders and compliance experts have 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 currently developing Adult Production Health & Safety Services (APHSS), in order to ensure that STI testing protocols for the industry continue, and to protect the safety of performers. Tynan will serve as legal advisor for the APHSS Advisory Committee, when the APHSS 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. Judge Smith's decision can be found here. AVN's analysis of that decision can be found here.