by Dana DiFilippo, New Jersey Monitor
Four New Jersey police departments used blood samples from the state’s newborn disease screening program to help them investigate five criminal cases in recent years, a controversial use that civil rights advocates have decried as an abuse of police powers.
A judge on Tuesday ordered state health officials to reveal within 14 days which police agencies retrieved the baby “blood spots” and when.
The ruling comes nearly six months after the state Office of the Public Defender and New Jersey Monitor sued the state Division of Public Health and Environmental Laboratories because division officials refused to release records showing how often and why police sought the spots to assist investigations.
The state requires newborn blood screening by law, but officials don’t inform new parents their infants’ samples are stored for 23 years, that the samples could be used for purposes beyond disease screening, and whether and how they can opt out from the blood testing itself or the spots’ storage afterward.
The issue came to light early last year after the Office of the Public Defender discovered that New Jersey State Police used the blood spot of a child, now 10, to link his father to a 1996 sexual assault instead of proving probable cause and getting a warrant, as the law requires, to obtain the man’s DNA directly.
The office, along with New Jersey Monitor, subsequently filed requests under the state’s public records laws for all grand jury subpoenas that law enforcement agencies served on the laboratory where the state stores baby blood spots.
State officials eventually disclosed that the newborn screening laboratory received five subpoenas from four law enforcement agencies over about five years — though they still wouldn’t produce them, even though the Monitor and public defender’s office agreed to redactions that would anonymize them. State attorneys argued that releasing the subpoenas would compromise police investigations and “hamstring grand juries from issuing subpoenas to public agencies for fear of them becoming public.”
But Superior Court Judge Robert Lougy said while the secrecy of grand jury proceedings is inarguable, court rule is “silent” on the secrecy of grand jury subpoenas. Grand juries are “instruments of justice” whose doings may be disclosed “if justice so requires,” he added.
“The paramount considerations of secrecy have not … led New Jersey courts to afford the institution the ‘almost mythical’ stature ceded to it by some courts,” Lougy wrote.
More transparency needed
Attorney CJ Griffin represented the Office of the Public Defender and New Jersey Monitor in the case. She celebrated the ruling as a “common-sense application of the court rule.”
But she agreed the redacted records raise many more questions state officials should answer about how it allows blood spots to be used, beyond disease screening. In a law enforcement context, using blood spots to link suspects to crimes “sidesteps the Constitution,” Griffin said, although she conceded police could have other “less offensive” reasons for using them, such as identifying a missing child or unidentified remains.
“We need more transparency. The fact that there’s five isn’t going to tell us anything about the investigations,” Griffin said. “This is a lawsuit to provide the public with some information about the scope of this problem. It is not a lawsuit that sought any sort of relief, in terms of stopping them from doing this. Our hope would be that this issues a red flag for the Department of Health. Perhaps they’ll respond to subpoenas differently in the future, but I really think that we need legislation to put safeguards around this program.”
Nancy Kearney, a health department spokeswoman, said the department doesn’t comment on litigation. The Attorney General’s Office, which defended the health department, didn’t respond to a request for comment.
Two Democratic legislators introduced a bill in September that would bar New Jersey from using baby blood spots for anything other than detecting disease. The Assembly’s judiciary committee unanimously advanced the legislation a week later, but it has stalled since then, and there’s no companion bill in the Senate.
Griffin and other privacy advocates have called on policymakers to limit third-party use of baby blood spots, require parents’ informed consent for any use of the spots, shorten the time spots are retained, and allow parents to opt out of the testing, spot storage, or both.
Permitted uses and retention times vary widely from state to state, with some selling them to for-profit companies for research and storing them forever. But some states have put protections in place. Griffin pointed to Virginia, which stores spots for six months and uses them only for disease screening, as a model.
Jennifer Sellitti, a spokeswoman for the Office of the Public Defender, said five instances of police using blood spots for criminal investigation purposes might not sound like a lot in a state where hundreds of thousands of crimes occur every year.
“One concern that I have is that people will say, ‘Oh, this isn’t as big of a problem as we thought.’ To that I would say, that means we caught this problem early,” Sellitti said. “Whether it’s the first time or the fifth time, law enforcement has tried to make an end run around the Constitution. Just because we caught something early doesn’t mean we should swat it away. It means we should fix it before that problem becomes more systemic and more rooted in police practice.”
She echoed Griffin’s call for transparency.
“By just shining a light on this, we’re able to ask: Do we have the system that we want in place?” Sellitti said. “And what can we do to make a better system that ensures that nobody’s abusing this database and abusing people’s very, very private genetic data?”