VACCINE PASSPORTS CAN ADDRESS PRIVACY ISSUES
Proper design can limit revealing details, say Blake Murdoch and Lorian Hardcastle.
Premier Jason Kenney recently announced that Alberta will not develop vaccine passports, stating that he believes they “would in principle contravene the Health Information Act and also possibly the Freedom of Information and Protection of Privacy Act.” This statement may have been intended more as an appeal to his base than as an accurate statement about the law, similar to previous misleading statements regarding equalization and the legality of lockdowns.
A vaccine passport could simply be a scannable QR code indicating that the individual is fully vaccinated or has an exception to the requirement for vaccination, without specifying which. Alternatively, a vaccine passport could be a paper document that merely confirms the individual's demographic information and the fact of vaccination or exemption, which would address some of the concerns associated with a lack of access to technology. Although both of these examples limit the disclosure of health information, vaccination status is personal health information under the Health Information Act.
Health privacy laws adopt the principle that individuals have the right to consent to the collection, use, and disclosure of their information, subject to limited exceptions. Consent wouldn't act as a barrier to vaccine passports, given that only those who want to obtain and use them would have to. An explanation of how the passport will be used could be provided at the time of creation and each use, and consent to that use, would be implied every time a person provides it to access a service or business. Those who reject the system need not be required to disclose any information.
Given that the Health Information Act contemplates individuals obtaining their own health information and consenting to the disclosure of their information to third parties, it is unclear why Premier Kenney is telling Albertans the Act would prevent vaccine passports. In order to minimize concerns that vaccine passports coerce people into vaccination, provinces could limit or regulate their use for essential services.
Private businesses that require access to vaccine passports, similar to the proof required by the Calgary Stampede's Nashville North festival, are bound by privacy laws. For example, the Personal Information Protection Act requires those who collect information to have safeguards in place and to not collect more information than is needed. Similarly, public bodies who require vaccine passports to access services would also be bound by privacy rules requiring safeguards and limiting their collection, use, and disclosure of information, as set out in the Freedom of Information and Protection of Privacy Act. Businesses and public bodies could mitigate privacy concerns and facilitate compliance with privacy laws by not storing any health information and instead only viewing it at the time of admittance.
Both private businesses and public bodies would not be able to summarily exclude those who can't get vaccinated due to age or legitimate vaccine contraindicating health conditions. They have obligations under provincial human rights laws to accommodate these individuals, possibly by providing rapid testing or alternative avenues to obtain service.
Although his reasons for thinking vaccine passports violate provincial law are unclear, Kenney's government could easily amend existing legislation to explicitly address vaccine passports if so desired. But when it is politically convenient, Kenney hides behind statutes and acts as if they lie beyond his control.
Vaccine passports remain an important option that may be necessary to protect public health given the challenges that variants and anti-vaxxers present for reaching herd immunity and given the desire to avoid reverting back to previous public health restrictions. Contrary to Premier Kenney's remarks, vaccine passports can be designed to address privacy concerns. And by categorically rejecting these passports, he is also shutting down important public policy debates on how they might be implemented in a manner that both helps to protect public health and accounts for equity and human rights concerns.
When it is politically convenient, Kenney hides behind statutes and acts as if they lie beyond his control.