Request for health records of late sibling— request declined under s 9(2)(a) to protect privacy of deceased person — information was sensitive medical information — however, nature of relationship between the requester and the deceased person lowered the privacy interest — there was a strong public interest in the family members having access to information to better understand what happened to their deceased relative — HNZ accepted Ombudsman’s opinion and released the information on the condition it would not be circulated other than to close family members and the Coroner
Background
A person sought their late sibling’s (the individual) health records from Health New Zealand – Te Whatu Ora (HNZ). The requester sought the information to help compile the family’s submission to the Coroner. The requester felt that the information the Coroner had was incomplete.
HNZ refused the request under section 9(2)(a) of the Official Information Act 1982 (OIA), to protect the privacy of the deceased individual. The requester then complained to the Chief Ombudsman.
Investigation
Section 9(2)(a) — Privacy
Subject to any stronger public interest in release, section 9(2)(a) of the OIA provides good reason for withholding information if it is necessary to ‘protect the privacy of natural persons, including that of deceased natural persons’.
There is generally a high privacy interest in a person’s health records, as health records often include highly sensitive information. This right to privacy is retained following the death of an individual. The information requested and subsequently withheld consisted of the individual’s medical notes, including details of the health issues the individual experienced prior to their death. This information would generally carry a high privacy interest.
In this case, however, the privacy interest was lower than usual as it was apparent that the requester and their family knew about the illness the individual was suffering from and their diagnosis, and were present and supportive at several of their healthcare appointments. The individual discussed their health with their family who also accompanied them to medical appointments, meaning it could be inferred that the individual would not have had a problem with the requester having access to their health information.
Therefore, while it was true that releasing the information would reveal sensitive details about the individual’s health, it was likely that the requester already knew many of the details. These factors lessened the need to withhold the information to protect the individual’s privacy.
Consultation with the Privacy Commissioner
Before forming his opinion, the Ombudsman consulted the Privacy Commissioner to ascertain his views on refusing the request in reliance on section 9(2)(a).[1] The Privacy Commissioner agreed that the circumstances of the case lowered the privacy interest.
The Privacy Commissioner also noted his obligation under section 21(c) of the Privacy Act 2020, to take into account cultural perspectives on privacy. He further observed the Supreme Court has held that tikanga is part of New Zealand common law. The Privacy Commissioner therefore considered it appropriate to refer to tikanga in this matter. As noted above, the family actively supported the individual throughout their life, and were present during their interactions with health professionals. On this basis, the Privacy Commissioner considered that relevant tikanga and whanaungatanga concepts were consistent with the analysis that there was a lower level of privacy attaching to the individual’s health records.
The individual also agreed to the requester participating in their health affairs during their lifetime. The Privacy Commissioner noted this and suggested that the tapu the individual exercised over their personal information was relaxed in relation to their sibling. The requester had exercised a collective responsibility during their sibling’s lifetime that lessened the privacy interest in this case.
The Privacy Commissioner’s view was that the circumstances of the case lowered the weight of the privacy interest. These observations strengthened the Ombudsman’s view that releasing the individual’s health information would not cause the same privacy issues as it might for another person.
Overall, the Ombudsman considered there was a low privacy interest in the information at issue.
Public interest
Section 9(2)(a) is subject to a public interest test, which means the need to withhold the information to protect privacy needs be weighed against the public interest in release. If the public interest in release outweighs the need to withhold, the information must be disclosed.
There is a strong public interest in family members having access to information to better understand what happened to their deceased relatives. This is particularly relevant in this case, given the requester’s view that the Coroner did not have all the information needed to accurately represent the individual’s life.
For these reasons, the Ombudsman considered the public interest in releasing the information outweighed the need to withhold the information to protect the individual’s privacy.
However, the Ombudsman also considered that the public interest in release was confined to family members and the Coroner, and was not relevant to the general public. The Ombudsman considered the information could be released to the requester, on the condition that they did not disclose or disseminate the information to anyone other than close family and the Coroner. The Privacy Commissioner endorsed this approach.
Outcome
The Ombudsman formed the opinion that section 9(2)(a) did not provide good reason to withhold the individual’s health records, as the need to protect privacy was outweighed by the public interest in release.
HNZ accepted the Ombudsman’s opinion, apologised to the requester, and released the information on the condition that it would not be circulated other than to close family members or the Coroner.
Given that HNZ apologised and released the information to the requester, the Ombudsman did not believe it necessary to make a recommendation in this case.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.