not lose all expectations of privacy because automobile use is subject to government regulation. "Auto travel is a basic, pervasive and often necessary mode of transportation to and from one's home, workplace, and leisure activities . . ."). By adopting these regulations the state has embarked upon a unique regulatory program, rehabilitative rather than penal in nature.
The court is reluctant, without a greater showing by plaintiffs, to enjoin part of an extensive state regulatory scheme, especially when such action may be perceived by the public as undermining the ability of the Racing Commission to adequately police this industry or the public's confidence in the Racing Commission's ability to do its job. The court finds that, at this point, plaintiffs have failed to meet their burden to demonstrate a probability of success on the merits, that plaintiffs will suffer any irreparable harm as a result of continued testing during the duration of this litigation, and that the public interest in the integrity and safety of thoroughbred racing will be served by an injunction. Therefore, the court denies plaintiffs' motion for a preliminary injunction preventing the enforcement of N.J.A.C. 13:70-14A.10 and 13:70-14A.11.
7. The Privacy Claim. The state forbids plaintiffs from using any Controlled Dangerous Substances, as defined by N.J.S.A. 24:21-1 et seq., or prescription legend drugs, unless obtained directly or pursuant to a valid prescription or order from a licensed physician. Plaintiffs must give the State Steward notice of such use. N.J.A.C. 13:70-14A.11(a). Plaintiffs must fill out a form (see Appendix B attached hereto), which asks for the names of prescribed medications, the names of the persons who prescribed them, what each prescription treats, and the date and time of the last dosage of each medication taken. The form also requires that plaintiffs provide the names of over-the-counter medications used, what these medications treat, and the date and time of the last dosage. Plaintiffs argue that the regulation (1) forces jockeys to divulge private, personal medical information without sufficient justification, (2) forces jockeys to divulge information which could incriminate them under the laws of New Jersey, and (3) fails to provide adequate provisions and safeguards to prevent the disclosure of such information to the public and members of their profession.
While the constitution does not explicitly state that there is a right to privacy, a constitutional doctrine has been established and expanded "variously described as recognizing a right to privacy." McKenna v. Fargo, 451 F. Supp. 1355 (1978); see Carey v. Population Services Int'l, 431 U.S. 678, 684-86, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977); Whalen v. Roe, 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977). There is a privacy interest in avoiding disclosure to government agents of personal medical information. Whalen, supra at 608-09. However, this privacy interest is not absolute and must be balanced against the legitimate interests of the state in securing such information. The regulations must be narrowly tailored to "express only those compelling state interests." McKenna, supra at 1381; Dolce, supra. The extent of the plaintiffs' privacy interests must be judged in light of the statutory safeguards against disclosure. Whelan, supra; Lehrhaupt v. Flynn, 140 N.J. Super. 250, 260-63, 356 A.2d 35 (App. Div. 1976), aff'd, 75 N.J. 459, 383 A.2d 428 (1978). The state must use the narrowest means consistent with the maintenance of its legitimate interests. Martin, supra; Lehrhaupt, supra at 262, 264; Kenny v. Byrne, 144 N.J. Super. 243, 253, 365 A.2d 211 (App. Div. 1976), aff'd, 75 N.J. 458, 383 A.2d 428 (1978).
In Whalen, the Supreme Court held that disclosure of an individual's name, age, address, and use of a certain drug did not (1) unduly burden his privacy interest nor (2) differ significantly from the disclosures of private medical information requested by insurance companies and hospital personnel. Whalen, supra at 608. In Martin, the New Jersey Superior Court upheld the use of a casino license form pursuant to the Casino Control Act, holding that none of the challenged questions were "so personal" as to permit the assertion of a right of selective disclosure. The questions on the casino license form concerned "predominantly information of public record." Martin, supra at 321-22. In McKenna, the United States District Court for the District of New Jersey found that the degree and character of the required medical disclosure was "far greater and more intrusive" than in Whalen. McKenna, supra at 1381. The Jersey City Fire Department required a thorough psychological examination as a prerequisite to employment. The court found that:
The evaluation looks deeply into an applicant's personality, much as a clinical psychologist would if requested to do so by an applicant. Fire-fighter candidates are called upon to reveal the essence of their experiences of life, the collective stream of thoughts and feelings that arise from the ongoing dialogue which individuals carry on between the world and themselves in the privacy of their being.
Id. However, the court found the state's interest in the medical disclosure sufficiently compelling to override the applicant's privacy interests:
The life of a community, as well, depends, at the most basic level, on those whose job it is to protect the community from physical forces, like fire, that have escaped from the control that makes them productive. Property, and the security of the community, as well as lives, are at stake in improving the fire department. The state interest is compelling, indeed . . . and is served by the challenged evaluation and hiring procedure.