High Court: Ministry of Health must disclose data of unvaccinated Māori to health agency

The court ruled that the ministry erred in its interpretation of the Health Information Privacy Code

High Court: Ministry of Health must disclose data of unvaccinated Māori to health agency

The High Court has overturned the Ministry of Health’s decision to refrain from sharing the individual data of unvaccinated Māori with Māori health agency Whānau Ora Commissioning Agency (WOCA).

WOCA had requested data such as the personal information, contact details and vaccination booking status of unvaccinated Māori from the ministry, submitting that the data would aid it in appropriately targeting and delivering COVID-19 vaccinations to unvaccinated Māori – a group that makes up a materially larger percentage than other eligible populations in New Zealand.

The Ministry of Health agreed to provide “anonymised (to street level) mapping” representations that depicted the areas in which generally unvaccinated communities resided; however, the ministry declined to authorise the sharing of individual, identifiable data with WOCA on the basis that the ministry was opting for the “least privacy invasive” approach. The ministry also cited concerns expressed by the District Health Board chairs that the provision of such data would spark bullying in the community.  

WOCA’s case against the Ministry of Health hinged on three arguments:

  • that the ministry erred in its interpretation of the Health Information Privacy Code
  • that its decision was inconsistent with previous decisions
  • that it was not in accordance with the principles of Te Tiriti o Waitangi

The agency also submitted evidence that the ministry had historically provided Healthline, a non-Māori telehealth company, with similar data.

Finally, WOCA pointed to the government’s commitment to uphold and honour Te Tiriti in the COVID-19 vaccination programme, and submitted that the ministry’s decision to take the “least privacy invasive approach” does not adequately protect the health rights of all Māori.

The High Court sided with WOCA, pointing out that rule 11(2)(d) of the Health Information Privacy Code allows the ministry to disclose an individual’s data if it reasonably believes that there is a “serious threat to public health or public safety” and that “disclosure of the information is necessary to prevent or lessen that threat.” Since WOCA would not be privy to the vaccination status of the hundreds of residents in each statistical area, the court determined that the ministry did not have the proper basis to conclude that the provision of anonymised mapping data would allow WOCA to make “considerable headway” in targeting vaccinations

The court also shot down the ministry’s argument that it was not practicable to obtain consent to disclose the information of the individuals in question. The court pointed out that “[i]t is inconsistent for the ministry to conclude that it cannot contact all of the unvaccinated, with their contact details, while at the same time asking [WOCA] to locate them without their contact details…”

Moreover, the court found the ministry’s willingness to provide Healthline with the same information significant in that it “evidences a recognition that disclosure of individual data was necessary for mainstream providers to effectively target unvaccinated people.”

Finally, the court agreed with WOCA’s assertion that the ministry’s decision did not protect the health rights of all Māori, commenting that it was “difficult to see how that decision could have been informed by the principles of partnership and options, in particular.”

Thus, the court set aside the Ministry of Health’s reviewable decision, concluding that the ministry erred in its interpretation of the Health Information Privacy Code, and failed to exercise its power in accordance with Te Tiriti o Waitangi.

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