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Privacy and M. bovis more complex than you think

The Privacy Commissioner says the law might not hamper officials from identifying farms infected with Mycoplasma bovis, but a compelling case for doing so is yet to be made. David Williams reports.

If for nothing else, Ministry for Primary Industries’ meetings around the country about the cattle disease Mycoplasma bovis will be remembered for their public confessions.

Last month, Cambridge’s Henk Smit stood up at a packed meeting in the Waikato and admitted his farm was infected. Richard Maxwell did the same in Cheviot this week.

Federated Farmers dairy chairman Chris Lewis says he’s spoken to 10 infected farmers around the country, who have a range of stories. “Some have said to me, hey, we’d like to out ourselves because we don’t want it to be transferred onto any other farmers. But earlier on in the piece, when there were only a few farmers infected, they didn’t want to out themselves because they felt like there were going to be ostracised, you know, because they’ve got this dirty disease on their farm.”

MPI, which didn’t respond to Newsroom’s request for comment, has used its national M. bovis roadshow to educate farmers about the disease and how it spreads, in an attempt to remove the stigma and mystery about it. It has also allowed farmers to air their frustrations, including at MPI’s handling of the outbreak and the slow rate of compensation.

Another problem raised has been the lack of information about infected farms, with calloused fingers being jabbed at one supposed barrier – the Privacy Act.

A nuanced problem

But is it a barrier? Privacy Commissioner John Edwards’ answer is nuanced.

MPI officials are saying there are privacy concerns about publicly identifying infected farms. “I think that’s true,” Edwards says. But does the law prevent MPI, or anyone else for that matter, from disclosing the actual location of farms or the identity of farmers? “That’s a slightly more complex question. It may not.”

The law says an agency holding personal information should not disclose that unless it believes, on reasonable grounds, that an exception applies. That could include that the disclosure is necessary to avoid a prejudice to the maintenance of the law, on public health and safety grounds, or when the individual has authorised it. There are also disclosure provisions – both restrictive and empowering – in the Biosecurity Act.

If the Government wanted legal certainty over disclosures then there are other possible authorisations, including bringing in codes of practice or information-sharing agreements. The Privacy Commissioner can also make specific authorisations.

Edwards says if there was a compelling case to notify the public of the locations of infected farms the law could easily be marshalled to make that happen. “But I haven’t heard yet anyone say we think there is a compelling case to make this information public.”

(MPI’s latest tally shows four more farms are now considered infected since last week, lifting the total to 45 – but 10 of have had restrictions lifted after being depopulated and cleaned.)

“If you’re sitting around Grey Lynn wondering whether you should cycle through the Otago rail trail and be breathed on by a cow, that doesn’t seem to be a good case [for disclosure].” – John Edwards

Edwards – who previously acted as the lawyer for the National Animal Identification and Tracing (NAIT) system – says there are questions about whether identifying infected farms is in the public interest, and what the public would do with the information.

“If you can do something to reduce the incursion then maybe you can make a case to have access to the information. If you’re just sort of curious, if you’re sitting around Grey Lynn wondering whether you should cycle through the Otago rail trail and be breathed on by a cow, that doesn’t seem to be a good case – there’s no evidence of it being a risk to humans.”

In extreme circumstances, the Privacy Act would allows for the disclosure of information. For example, Edwards says, if the NAIT system failed.

“If MPI had to say, there is no other way of notifying people about the risks associated with a particular herd than by publicising the location and therefore, by implication, a farmer, in order to trace other people who may have taken stock from that property, then it may be that that would fit the serious risk exception to the rule against disclosure. But that’s something that we look at after the fact, and it’s hard to give those advanced rulings.”

Edwards says people don’t appear to be putting forward a strong case for disclosure. The argument he’s hearing more often, usually from farmer representative groups, is that disclosing information about infected farms might put off other farmers from reporting M. bovis symptoms in their herd.

“That’s quite a different thing from blaming privacy or saying their hands are tied by regulation.”

Confidentiality considerations

University of Canterbury law dean Ursula Cheer also says she’s not aware of any argument to justify publication of information identifying infected farms.

She says such identification could be deemed commercial information, which could bring the law of confidentiality into play. Privacy and confidentiality have similar approaches, she says – there’s a reasonable expection for information not to be made public, depending on public interest considerations. Cheer: “Is there information that you can say is confidential and, if it gets out, will it be detrimental to the person whose information it is?”

Edwards, meanwhile, makes his own disclosures. His office has provided advice to MPI. “I know we’ve been talking to them on and off – I don’t know how detailed those conversations have been.” He also wrote to Agriculture Minister Damien O’Connor in December. That letter was prompted by the minister stating he would have to take the Privacy Act into account when considering whether to reveal the identity of infected farmers. The commissioner told O’Connor he was happy to work with him if he thought it was important to make that information public.

While he doesn’t normally discuss its work, Edwards says he’s not aware of any M. bovis-related complaints. But he can refer to some real-world examples.

Two weeks ago, RNZ’s Checkpoint show interviewed the sharemilkers who first raised the alarm about sick cows on a South Canterbury farm, which led to the discovery of M. bovis. Edwards: “Now this sounds trite, but it’s actually not, it’s a really important point – they would not be able to make a privacy claim because they were out in the public.”

Lewis, of Federated Farmers, thinks MPI has turned a corner with its communication about M. bovis. He believes it is now suggesting farmers of infected properties advise their neighbours, and is even offering to accompany them and explain the situation.

“MPI’s learnt a lot out of this,” Lewis says. “So has the farming industry and so have farmers themselves. It’s been a massive learning curve. There’s no point finger-pointing.”

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