A new directive issued Thursday by Attorney General Matt Platkin will limit — but not end — law enforcement’s ability to collect blood samples as part of a mandatory federally sponsored newborn screening program.
Platkin’s order was released along with a change in Department of Health regulations that limits how long the state can keep blood samples for newborn screenings. The changes come as New Jersey faces a class-action lawsuit after the Office of the Public Defender alleged that New Jersey police took blood samples from the screening program without a warrant and used it to link the child’s father to a 1996 sexual assault.
A public records lawsuit filed by the New Jersey Monitor and the Office of the Public Defender later revealed that four law enforcement agencies had issued five grand jury subpoenas to the program over a period of about five years.
“Even infrequent use of information collected through a public health program can undermine public confidence in such programs, which in turn can jeopardize public safety and health,” Platkin said in the directive.
He said Thursday’s order would ensure law enforcement only requests information from the newborn screening program in “truly exceptional circumstances.”
Under the new rules, law enforcement would in most cases need subpoenas or search warrants to obtain blood samples from newborns, which are used to test newborns for dozens of rare and potentially fatal diseases.
The directive prohibits law enforcement from obtaining blood samples through grand jury subpoenas. Instead, they must obtain what is known as a Dyal subpoena, which requires authorities to show probable cause to obtain them, a lower legal standard than the probable cause required for a search warrant.
Law enforcement may also obtain blood evidence through administrative subpoenas issued in cases of missing persons or unidentified bodies. The New Jersey State Police Missing Persons Unit is authorized by law to issue administrative subpoenas to “obtain information necessary to conduct an investigation.”
“The Newborn Screening Program is an important public health program – and keeping the information confidential is critical to the program’s success,” Platkin said in a statement. “Today’s policy adds new restrictions to ensure that law enforcement agencies only request such information in truly exceptional circumstances.”
In any case, law enforcement agencies must submit a written request to the head of the state’s criminal justice department explaining why other methods will not work before requesting blood samples.
Lawyers with the Institute for Justice, a libertarian public interest law firm representing the plaintiffs in the class action suit, said Platkin’s order and the Health Department’s change in regulations were a step in the right direction but fell short of the plaintiffs’ goal.
“I think they’re trying to sound like they’re being more cautious, but it seems to me that there are still a lot of different ways that law enforcement can get these blood stains,” said Brian Morris, the Institute for Justice’s lead attorney on the case. “We think they shouldn’t be an option unless there’s a warrant under the regular warrant process.”
The plaintiffs allege that existing state policies regarding the retention and use of blood samples collected for the screening program violate the Fourth Amendment’s protections against unreasonable searches and seizures.
They have asked a judge to require the state to immediately destroy blood samples after tests are completed unless parents give their consent for them to be stored and used – including by law enforcement authorities.
The Health Ministry’s rule change reduces the length of time the government can keep blood samples from newborns from 23 years to up to 10 years.
Under the new rules, blood samples with negative test results would be destroyed two years after testing was completed, while blood samples with positive test results would be anonymized and kept for ten years.
“Two years is obviously better than 23 years, but it still means the blood is being stored without asking the parents’ permission, and that’s what our whole lawsuit boils down to,” Morris said.
The Department of Health’s new policy, which went into effect immediately, with delays in the destruction of existing blood samples, allows parents to submit forms authorizing the state to destroy the samples at any time after testing is completed.
The new policy does not prevent the Department of Health from sharing blood samples with law enforcement, but it does say it will only do so without parental consent under the conditions set out in Platkin’s order.
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