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FAISON v. PARKER

January 15, 1993

MARIE M. FAISON
v.
EDWARD T. PARKER, ET. AL.


DUBOIS


The opinion of the court was delivered by: BY THE COURT; JAN E. DUBOIS

DUBOIS, J.

 JANUARY 15, 1993

 This action, brought pursuant to 42 U.S.C. § 1983, arises out of a presentence report that was ordered by the Honorable Russell M. Nigro of the Court of Common Pleas of Philadelphia County in connection with the sentencing of plaintiff, Marie M. Faison, on October 29, 1990. *fn1" The statements in the presentence report about which Ms. Faison complains are as follows: (1) she was diagnosed as having cervical cancer; (2) she tested positive for syphilis; (3) she tested positive for the HIV virus; (4) she was diagnosed as having a "severe character disorder - schizoid personality severe with strong paranoid trends"; and (5) she threatened the life of a caseworker while in Court concerning the foster care and custody of one of her children. In her Amended Complaint, Ms. Faison charged that disclosure of this information in the presentence report violated her constitutional and state protected right to privacy and constituted an intentional infliction of emotional distress. She also claimed that she was sentenced to an unreasonable period of confinement as a result of the inclusion of this information in the presentence report.

 Presently before this Court is Defendants' Motion For Summary Judgment. For the reasons stated below, this Court will grant summary judgment in favor of Defendants.

 I. FACTUAL BACKGROUND

 The presentence report submitted to the Honorable Russell M. Nigro disclosed that Ms. Faison (1) was diagnosed as having cervical cancer; (2) tested positive for syphilis; (3) tested positive for the HIV virus; (4) was diagnosed as having a "severe character disorder - schizoid personality severe with strong paranoid trends"; and (5) threatened the life of a caseworker in Court concerning the foster care and custody of her children. *fn2"

 Based on Ms. Faison's admissions, it is undisputed that she was diagnosed as having cervical cancer and that she tested positive for syphilis. Ms. Faison disclosed this information to defendant Parker during the pre-sentence investigation hearing on October 3, 1990; to defendant Solomon in February and July 1990; and to defendant Pogonyi. Based on her admissions and medical records, it is also undisputed that Ms. Faison did not test positive for the HIV virus. In her Amended Complaint, Ms. Faison contends that the mental health evaluation is "simply untrue," and that the allegation that she threatened the life of a case worker is a "malicious and outrageous lie." Amended Complaint PP 19, 21.

 II. STANDARD OF REVIEW

 Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court does not resolve questions of disputed fact, but simply decides whether there is a genuine issue of fact which must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

 In the instant case, both parties agree that the relevant facts are not in dispute. Indeed, in Ms. Faison's Memorandum of Law in Support of her Response to Defendants' Motion for Summary Judgment, she states "the facts, as stated in defendants' motion, are undisputed. What is in dispute is whether or not Marie M. Faison's constitutional right to privacy has been violated. . . ." Plaintiff's Memorandum of Law in Support of her Response to Defendants' Motion for Summary Judgment at 1. However, in an alternative argument, Ms. Faison contends that summary judgment is not appropriate because there is a genuine issue of material fact as to whether the state measures taken to keep medical information confidential are satisfactory. This argument is without merit. There is no factual dispute as to what state statutes and rules safeguard against disclosure of the confidential information contained in the Presentence Report. What is in dispute is the legal adequacy of these safeguards, which is a question of law for the Court. See infra at pages 10 - 14.

 The Court concludes that the dispositive facts are not in dispute. Summary judgment is, therefore, appropriate.

 III. PLAINTIFF'S CONSTITUTIONAL RIGHT TO PRIVACY WAS NOT VIOLATED

 A. Federal Constitutional Right

 The Supreme Court has recognized a constitutionally protected privacy interest in two areas: (1) the individual interest in avoiding disclosure of personal matters and (2) the interest in independence in making certain kinds of important decisions. Whalen v. Roe, 429 U.S. 589, 699, 97 S. Ct. 869, 876, 51 L. Ed. 2d 64 (1977). In United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980), the Third Circuit held that medical records are protected from disclosure by the first of these interests, the confidentiality branch of the right to privacy. Medical records, the Third Circuit stated, which "may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection. Information about one's body and state of health is a matter which the individual is ordinarily entitled to retain within the 'private enclave where he may lead a private life'." Id. (quoting United States v. Grunewald, 233 F.2d 556, 581-82 (2d Cir. 1956) (Frank, J., dissenting), rev'd 353 U.S. 391, 77, 1 L. Ed. 2d 931, 77 S. Ct. 963 S. C.t 963 (1957)) (citations omitted); see also In re Search Warrant (Sealed), 810 F.2d 67, 71 (3d Cir. 1987) ("medical records are clearly within this constitutionally protected sphere").

 The Third Circuit recognized, however, that the privacy right in nondisclosure of confidential medical information is far from absolute, and "even material which is subject to protection must be produced or disclosed upon a showing of proper governmental interest." Westinghouse, 638 F.2d at 577; see also Whalen, 429 U.S. at 699, 97 S. Ct. at 876 ; Plowman v. U.S. Dep't of Army, 698 F. Supp. 627, 634 (E.D. Va. 1988) (privacy right of this nature not absolute or unqualified). The Westinghouse court held that governmental intrusion into medical records is permitted only after balancing the interests of the individual and society, and determining that the societal interest in disclosure outweighs the individual's privacy interest on the specific facts of the case. Westinghouse, 638 F.2d at 578. See also Fraternal Order of Police, Lodge No. 5 v. Philadelphia, 812 F.2d 105, 110-11 (3d Cir. 1987)

 In describing the balancing test, the Westinghouse court stated that the factors to be considered in deciding whether an intrusion into an individual's privacy is justified include: (1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generate; (5) the adequacy of the safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access. Westinghouse, 638 F.2d at 578.

 In the instant case, Ms. Faison has a privacy right in the nondisclosure of her medical and mental health information. *fn3" Indeed, the type of medical and mental health information contained in the presentence report -- information concerning Ms. Faison's mental health and HIV status -- is deserving of a high degree of protection. *fn4" In O'Donnell v. United States, 891 F.2d 1079, 1086 (3d Cir. 1989), the Third Circuit held that given the sensitive nature of psychiatric information "great care must be taken to maintain the confidentiality of psychiatric records." See also Ms. B. v. Montgomery County Emergency Serv., Inc., 799 F. Supp. 534, 537 (E.D. Pa. 1991); In Re "B.", 482 Pa. 471, 394 A.2d 419, 426 (1978). Similarly, in Doe v. Barrington, 729 F. Supp. 376, 384 (D.N.J. 1990), the court held that "the privacy interest in one's exposure to the AIDS virus is even greater than one's privacy interest in ordinary medical records because of the stigma that attaches with the disease." But see Plowman, 698 F. Supp. at 632 (holding that the privacy interest in the nondisclosure of one's HIV status is no greater than the privacy interest in the nondisclosure of other medical information).

 Notwithstanding the sensitive nature of the medical and mental health information contained in the presentence report, the Court must weigh the state's interest in disclosing this information in order to determine whether Ms. Faison's constitutional right to privacy was violated. The Court concludes that given the public interest in access, the degree of need for access, and the state safeguards against unauthorized disclosure, Ms. Faison's constitutional right to privacy in the nondisclosure of her medical and mental health records was not violated.

 1. Public Interest in, and Degree of Need for, Disclosure

 The state has a compelling interest in, and need for, the inclusion of private medical and mental health information in the presentence report. Such information guides the sentencing court in determining an appropriate facility in which to incarcerate Ms. Faison, and enables the prison system to provide Ms. Faison with necessary medical and psychiatric attention.

 The deposition testimony of defendant Solomon highlights the state's compelling need to have such information contained in the presentence report:

 The court needs to know those things as it makes plans for disposition of an open matter. If the court is considering a community based sentence, they [sic] would want to consider any issues that that report might raise for special conditions of probation because the court has a lot of options in creating a treatment plan, if you will, for that individual while they are under the court supervision.

 And if there are issues of relevance, the prison needs to know if they are considering an incarceration whether that's in a correctional facility, or sometimes, the case may be disposed of in a mental health facility. They have been known to commit people as part of the criminal disposition. The institution may need to know some of these factors.

 Prisons, for example, will need to know things for making a classification. If there are health problems to be managed, they are going to have to have that information as well. It gives prison staff and institutional staff a place to start.

 Deposition Transcript of Peter Solomon at 28-29.

 The Department of Human Services also needs information concerning Ms. Faison's medical and mental health status in order to plan her childrens' foster care. If Ms. Faison tested positive for the HIV virus, the DHS would have had her children tested for the virus. Similarly, information concerning Ms. Faison's mental health assists DHS in determining the type of services to provide to Ms. Faison and her children to facilitate reunification. The deposition testimony of defendant Pogonyi is instructive on this point:

 Q. Now, why would information that you received about the parents be helpful in your planning and providing services ...


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