The judicial challenge1 against the Ministry of Health’s refusal to supply Whānau Ora Commissioning Agency (WOCA) with the contact details of unvaccinated Māori has led the High Court to provide guidance on the factors agencies should consider when asked to disclose private health data in a pandemic situation.
The Court also affirmed that any disclosure must be exercised in accordance with Te Tiriti o Waitangi and its principles, as informed by tikanga.
It ordered the Ministry to “re-take” the decision within three days. The Ministry later sought a 24-hour extension from WOCA, which was granted, but has again declined to provide the information at the level sought by WOCA.
WOCA wanted personal and contact details, including vaccination status, to enable them to target their services to Māori in the North Island who were unvaccinated or had only received one jab. The Ministry refused the request, agreeing only to supply WOCA with anonymised street level mapping data showing non-vaccinated communities.
The Court found that the Ministry had erred in its interpretation of rule 11(2) of the Health Information Privacy Code 2020. The Code is prepared by the Privacy Commissioner and largely replicates privacy principle 11 in the Privacy Act 2020, including the exception allowing an agency to disclose personal information without first obtaining the individual’s consent where necessary to lessen a serious threat to public health or public safety, or to the life or health of an individual.
The Court found that when making this determination, particularly in the wake of COVID-19, the relevant agency should take into consideration:
- whether it is necessary to disclose and use the individual’s information
- whether that disclosure presents a realistic prospect of preventing or lessening the health risk
- the effectiveness of the disclosure and use of the requested information
- the anticipated adverse consequences, and
- whether there are other options to address the health risk that require less privacy intrusion and resulting harms.
Stringent privacy requirements would remain in place where such information is shared.
The Court concluded that the Ministry had failed to conduct the necessary objective, evidence-based assessment either of the disclosure requested by WOCA or of the Ministry’s alternative approach (the anonymised data), which the Court considered would be less effective.
WOCA also argued that the Ministry had failed to uphold the Crown’s express commitment to honour Te Tiriti in conducting the Government’s vaccination strategy.
In relation to this argument, the Court agreed that WOCA was entitled to expect that the Ministry would uphold Te Tiriti principles. The Court found no evidence that the Ministry had thus far engaged with the views of Māori, but suggested that this was likely because it had yet to fully assess the factors for disclosure and had not realised that Te Tiriti principles would apply.
See the judgment here.
1 Te Pou Matakana Limited v Attorney-General