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Update: Lack of COVID location disclosure breaks law: First Nations

“The provincial government needs to stop infantilizing the public,” critic says
B.C. First Nations want disclosure of COVID-19 outbreak locations, something provincial health officer Dr. Bonnie Henry has resisted

B.C.’s government must disclose COVID-19 infection locations by law, a group of First Nations says in a September 15 application to the provincial privacy commissioner.

“If COVID-19 proximate case information does not represent information about a risk of significant harm to our communities, we don’t know what does,” Heiltsuk Nation chief councillor Marilyn Slett said. “The idea that we need to have an outbreak – as we have just had in our community – before B.C. will share information, is reckless and colonial, and it goes against B.C.’s own laws and promises of reconciliation.”

Helitsuk physician Dr. Don Wilson said the province has a moral and ethical duty to share COVID-19 location data.

 “This government to government information sharing request is absolutely reasonable and is vitally important for effective prevention of outbreaks which could lead to community spread,” Wilson said. “Better information allows for better decisions and responses to this public health emergency.”

It’s something the government has resisted doing, despite public calls for it to do so.

As far back as April, provincial health officer Dr. Bonnie Henry has maintained the risk is everywhere.

“It would be irresponsible to mention only a few communities and give people outside those areas a false sense that they are not susceptible or at lower risk. Every health region in British Columbia has people with COVID-19,” Henry said in an April 6 opinion article. “Every community and home town – no matter how large or small – is at risk.”

 “There are issues to balance here in terms of people’s ...  right to privacy which closely connected with their willingness to engage with us in the health care system,” Health Minister Adrian Dix said. “This has been a discussion from the very beginning.

“We’re just going to continue to work through these issues to ensure that we control the trans of COVID-19 in part in Indigenous communities but also in all rural and remote communities.”

But that’s not quite how the Heiltsuk Nation, the Nuu-chah-nulth Tribal Council and Tsilhqot’in National Government and other First Nations, civil society groups, and doctors see it.

They announced the filing an application with the Office of the Information and Privacy Commissioner’s Office, saying the government’s refusal to share information violates Section 25 of the Freedom of Information and Protection of Privacy Act.

That section says information must be disclosed if in the public interest whether or not a request for access is made. It says the information must be disclosed without delay to the public or affected group of people “about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or the disclosure of which is, for any other reason, clearly in the public interest.”

But in the documents submitted to the commissioner, the nations said Henry has said on a teleconference the section is not applicable as she has to protect personal information under the Provincial Health Act.

“Not saying no significant harm; it’s how do I mitigate those harms and protect personal health information,” the document summarizes Henry.

However, the First Nations said B.C.’s own Declaration on the Rights of Indigenous Peoples Act (DRIPA) requires that government “must take all measures necessary” to ensure the laws of BC are consistent with the UN Declaration on the Rights of Indigenous Peoples.

That declaration includes rights to self-determination, self-government and to develop and determine programs for maintaining the health and well-being of Indigenous people.

“Giving lip service to reconciliation, while allowing public officials to continue to disregard our efforts to govern during COVID-19 is deeply wrong,” Nuu-chah-nulth Tribal Council President Judith Sayers said. “We must have access to the same health datasets the BC government has, on a government-to-government basis, if we are going to get through this pandemic together.”

Sayers said the Ministry of Health has yet to explain why proximate COVID-19 cases do not present a risk of significant harm to the health or safety of First Nations communities.

“It is precisely during a pandemic that sharing information matters the most,” BC Freedom of Information and Privacy Association president Mike Larsen said.

He said at the pandemic’s start, it made sense not to release such information about one community as people in another could have lowered their guard and put themselves at risk.
“We’re months into this,” he said. “We’re in the middle of a second wave. There are people who have information and people who need that information.”

Larsen said the government has already made multiple orders for the sharing of health information without violating people’s privacy.

“We want a reasonable extension of reasonable practices,” he said.
We have been – and remain – very glad to see Dr. Henry and other public officials carefully assessing privacy/ transparency needs and obligations in the pandemic,” Larsen said. “Nevertheless, the time has come to reassess the specific procedures in this case.”

B.C. Civil Liberties Association interim policy director Meghan McDermott said the First Nations have a right to self-determination information to establish programs for their people.

“By refusing to share the requested health data with appropriate confidentiality provisions, the Ministry of Health is essentially preventing these communities from exercising the very rights that the province recognized when it enacted DRIPA,” McDermott said.

Sean Holman, a journalism professor at Calgary’s Mount Royal University, former Victoria investigative reporter and longtime user of B.C. access to information legislation, said the public needs information for decision-making.
“People cannot protect themselves if they don’t know what is going on in their local communities,” Holman said. “The provincial government needs to stop infantilizing the public and the government needs to stop infantilizing other governments.”

He said releasing information, “makes good scientific sense, it makes good democratic sense and it makes good health sense.”

Holman said it is “outrageous” the groups should have to ask for it.

“We’re seeing how privacy is being used as a shield not just against accountability but also as an obstruction, a barrier on the way toward good public health decision making.”

The ministry was expected to comment.