New directive limits — but doesn’t end — police use of baby blood samples

A new directive Attorney General Matt Platkin issued Thursday will limit — but not end — law enforcement’s ability to obtain blood samples drawn as part of a mandatory state newborn screening program.

Platkin’s directive was released alongside a Department of Health rules change limiting how long blood drawn for newborn screenings can be retained by the state. The changes come as New Jersey faces a class-action lawsuit lodged after the Office of the Public Defender alleged New Jersey State Police obtained blood from the screening program without a warrant and used it to tie 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 four law enforcement agencies had issued five grand jury subpoenas to the program over a period of roughly five years.

“Even the infrequent use of information gathered via a public-health program can impact the public’s trust in such programs, which can in turn jeopardize public safety and public health,” Platkin said in the directive.

He said Thursday’s directive would ensure law enforcement only seeks information from the newborn screening program in “genuinely exceptional circumstances.”

Under the new rules, law enforcement would in most circumstances require court-issued subpoenas or warrants to obtain newborn blood spots, which are used to test newborns for dozens of rare and potentially deadly conditions.

The directive bars law enforcement from obtaining blood spots through grand jury subpoenas, instead requiring they obtain a Dyal subpoena, a court-issued subpoena that requires authorities to show they have a reasonable basis — a lesser legal standard than the probable cause required for a warrant.

Law enforcement can also obtain blood spots through administrative subpoenas issued in missing-persons or unidentified-body cases. The New Jersey State Police’s missing persons unit has statutory authority to issue administrative subpoenas to “obtain information necessary to conduct an investigation.”

“The Newborn Screening Program is an important public health program – and it is crucial for the success of the program that its information is kept private,” Platkin said in a statement. “Today’s Directive adds new limits to ensure law enforcement agencies only seek such information in genuinely exceptional circumstances.”

In each case, law enforcement agencies must file written requests with the director of the state’s criminal justice division that explain why other methods won’t work before demanding blood spots.

Attorneys at the Institute for Justice, the public-interest libertarian law firm representing plaintiffs in the class-action suit, said Platkin’s directive and the Department of Health rules change are a step in the right direction but still fall short of the plaintiffs’ goal.

“I think they’re trying to sound like they’re being more protective, but it seems to me to still have a lot of different ways that law enforcement can obtain these blood spots,” said Brian Morris, the Institute for Justice’s lead attorney on the case. “We think they should be off the table unless there’s a warrant through the regular warrant process.”

The plaintiffs have alleged existing state policies on the retention and use of blood spots drawn for the screening program violate Fourth Amendment protections against unreasonable searches and seizures.

They’ve asked a judge to require the state to immediately destroy blood spots once testing is complete unless parents provide informed consent for their retention and use — including by law enforcement.

The Department of Health’s rules change cuts how long the state can retain newborn blood spots from 23 years to up to 10 years.

Under the new rules, blood spots that test negative would be destroyed two years after testing is complete, while those that test positive will be deidentified and retained for 10 years.

“Two years is obviously better than 23 years, but it’s still keeping the blood without asking parents for permission, which is really what our entire lawsuit boils down to,” Morris said.

The new Department of Health policy, which went into effect immediately with delays for the destruction of existing blood spots, allows parents to submit forms to have the state destroy the samples any time after testing is complete.

The new policy does not prevent the Department of Health from releasing blood spots to law enforcement, though it says if there is no parental consent, it will do so only under the conditions laid out in Platkin’s directive.