The State has moved before this court for an order permitting the State to obtain any and all medical records from The Harbor, a drug abuse clinic, regarding the testing for the presence of AIDS (Acquired Immune Deficiency Syndrome) and other related illnesses in the defendant. The State has also moved for the release of any records in the possession of the warden of the Hudson County Jail on this same subject. The defense opposes both motions. The Hudson County Counsel, appearing on behalf of the warden, takes no position.
On February 21, 1991 the defendant was arrested and later indicted for two counts of kidnapping in violation of N.J.S.A. 2C:13-1b and two counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(3), all first degree offenses. The crimes allegedly occurred on January 25, 1991 and January 27, 1991 and involved two victims, C.R. and M.B. respectively.
The defendant posted bail and was released on March 1, 1991. On June 27, 1991 he entered into a drug rehabilitation program at The Harbor in Hoboken, N.J. On October 21, 1991 a warrant for his arrest issued due to his failure to appear in Superior Court on these charges. He was arrested on the warrant on November 17, 1991 and has remained in the Hudson County Jail since that time awaiting trial. Presumably since that time medical records have been generated in the jail which would confirm or rule out the presence of AIDS.
Regardless of the merits of the State's application, there is one preliminary hurdle which must be met regarding the records from The Harbor. N.J.S.A. 26:5C-9(d) states:
The Court shall deny any application for disclosure of a person's record unless the Court makes a specific finding that the program was afforded the opportunity to be represented at the hearing. A program operated by a Federal, State or Local Government Agency or Department shall be represented at the hearing.
Since The Harbor was not notified of this motion, that part of the State's application that relates to this program's records is denied.
The State has filed an affidavit from an assistant prosecutor in support of its motion which states that in October of 1991, a Hudson County probation officer advised the Hudson County prosecutor's office that the defendant (one of his probationers) had tested positive for the HIV virus while enrolled in The Harbor drug program. Since defendant is charged with committing acts of sexual penetration against C.R. and M.B., the State theorizes that it is possible that C.R. and M.B. have been infected with the HIV virus from defendant. For the above reasons the State asks for the release of the blood test results ". . . so that it may inform C.R. and M.B. of the results."
The applicable statute for the release of AIDS records is N.J.S.A. 26:5C-5 et seq. The purpose of the statute is ". . . . to protect the confidentiality of individual AIDS records while assuming their limited availability for essential health, scientific and other legitimate purposes." Snyder v. Mekhjian, 244 N.J. Super. 281, 295, 582 A.2d 307 (App.Div.1990), aff'd, 125 N.J. 328, 593 A.2d 318 (1991). Although the State's papers do not rely on any specific subsection there are several methods through which records can be disclosed under N.J.S.A. 26:5C-5 et seq.
The defendant in this case has refused to consent to the release of the records so N.J.S.A. 26:5C-8(a) is not relevant. N.J.S.A. 26:5C-9 sets out the two situations in which a court may order disclosure of test results without the ...