Covid 19 Delta outbreak: High Court rules release of Māori vaccination data to Whanau Ora, a week ahead of border reopening

Lockdown day 51 Lorraine Peri (left) and Peter Ruka work Lincoln Rd to attract clients to the Waipareira Trust mobile vaccination pop-up centre in October. Photo / Michael Craig

A High Court decision to release Māori vaccination data to Whanau Ora Commissioning Agency is described as "bittersweet", coming just over a week before Auckland's border reopens.

In a hearing at Wellington's High Court last month Māori health agency Whanau Ora Commissioning agency (WOCA) called for the Ministry of Health to release the vaccination data in order for it to target its resources.

Release of data around the details of unvaccinated Māori and those with one dose had been declined by director general of health Ashley Bloomfield under the Health information privacy code.

In a decision released yesterday Justice Gwyn said the ministry had applied the wrong test in its assessment of whether the data could be released.

"In normal circumstances, the speed with which the ministry has consulted iwi, while working under great pressure, would be readily acknowledged as reasonable, and indeed impressive," reads the judgment.

"But in the particular circumstances of this case – the acknowledged very serious risks of Covid-19, particularly for Māori, the rapid spread of the Delta variant, the loosening of travel restrictions – what is a "reasonable" time cannot be measured against usual government processes."

The Shot Bro mobile vaccination bus making its first stop in Pukekohe in September to deliver the Pfizer Covid-19 vaccine to harder-to-reach members of the community. Photo / Sylvie Whinray

WOCA chairwoman Merepeka Raukawa-Tait said the Ministry of Health must now deliver all data of unvaccinated Māori within 72 hours, and disclose data of Māori awaiting their second vaccination within the past weeks - a directive which allows it to "continue to procrastinate".

"Dr Bloomfield must accept that should Māori death rates increase considerably over the next few months, we will hold him to account," she said.

"We need to keep our whanau safe. This requires the data for us to target our teams and resources. We know what is at stake.

"We should have had this data months ago and not have been subjected to the delaying tactics of MoH."

She said once the data was received they would work with provider partners to see find gaps in the vaccination uptake, and determine what actions were necessary.

"We know this delay by the MOH in providing us with the necessary data has put the health of Maori at risk."

At the time the application was made, Māori made up 48 per cent of active cases in New Zealand, in spite of only being 17 per cent of the country's population.

The applicants also estimated on November 9, there was a 22.3 per cent difference between second vaccination coverage for the Pākehā population (80.4 per cent) and the Māori population (58.1 per cent).

The applicant's request for the data had been governed under rule 11 of the Health Information Privacy Code 2020 (the Code), which allows information to be shared if it is for the purpose of collection or where disclosure is authorised by the individual concerned.

However, there can be exceptions made to the rule where the disclosure of the information is necessary to prevent or lessen a serious threat to public health or safety, or the health and safety of the individual concerned.

In a judgment on November 1, Justice Gwyn said in the face of serious risk from Covid-19 to the public, an "objective, evidence-based assessment" was required of how effective releasing the data to WOCA would be, versus how severe any possible adverse impacts could be.

"The ministry concluded it was merely 'possible' that approaches other than individual data might work ... given the seriousness and urgency of the threat the ministry was required to have a reasonable level of confidence that other measures will be effective."

Director general of Health Dr Ashley Bloomfield. Photo / Mark Mitchell

She said there was no reasonable basis for the conclusion that anonymised, street-level data would be enough for WOCA to make "considerable headway".

By not addressing WOCA's request with an evidence-based assessment of the harms and benefits of releasing the information, the ministry fell short of what is expected.

"If the ministry had carried out such an assessment it would have brought into sharp focus its obligations under Te Tiriti and how they applied to the particular request ... The ministry did not have adequate regard to Te Tiriti and its principles, as informed by tikanga."

The ministry was subsequently ordered to reconsider its decision within three working days.

Five days later, Bloomfield said the ministry had reconsidered its decision, but would not change it.

Justice Gwyn said the ministry's failure to involve the applicants in the process was "a breach of their right to natural justice".

"The director general has indicated that even if he had been satisfied that information sharing on the terms sought by the applicants was necessary, he would have declined to exercise his discretion to grant the request, because of Te Tiriti concerns arising from the feedback from iwi leaders," reads the judgment.

"If the applicants had been included in the consultation process [whether in the room, or subsequently, to clarify the above matters with the ministry] those questions could have been responded to, and likely resolved."