BC Freedom of Information and Privacy Association
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The information and privacy commissioner for the Yukon says the current approach to access to information isn’t working.
In the Yukon ombudsman’s 2023 annual report, tabled in the territorial legislature on Oct. 21, Jason Pedlar said the Access to Information and Protection of Privacy Act (ATIPPA) needs to be amended to give the commissioner the ability to issue orders of compliance to public bodies. Currently the commissioner is only able to give recommendations, according to the report.
“Those recommendations are — they’re just that, they’re recommendations, the public body can decide whether they accept them or not,” Pedlar told the News on Nov. 4, 2024.
Pedlar said since 2021, his office is seeing a trend where more recommendations at that formal level are not being accepted.
According to the 2023 annual report, in 2021, nine recommendations were rejected while two were accepted and three partially accepted. In 2022, 11 recommendations were rejected while four were accepted and six were partially accepted. In 2023, 49 recommendations were rejected, seven were accepted and one was partially accepted.
Recommendations are issued in a final report upon conclusion of a formal investigation into a complaint, according to the ombudsman’s website.
Pedlar said most complaints are resolved at the informal level, but when they can’t be, they proceed to the formal level. If the public body decides to reject recommendations from the commissioner, the only recourse is for the initial applicant who made the complaint to take the case to the Yukon Supreme Court. A court case is a rare occurrence, and there are the costs associated for the applicant, said Pedlar.
One applicant did bring their case to court in 2023, as outlined in the annual report. An adjudicator with the information and privacy commission made recommendations to the department of highways and public works to release records which the department did not have the authority to withhold, according to the report. The recommendations were rejected, according to the report.
On Dec. 21, 2023, a judge overturned the deputy minister’s decision to reject the recommendations. The judge also ordered the department to release the records in question. The judge also said there was no basis for the department to reject the contents of the commissioner’s report.
Pedlar said there are two potential amendments which could change who bears the burden in access to information.
The first is that the commissioner could be given order-making power, so they could issue an order that is binding on a public body to release information. If the public body doesn’t want to release that information, they would take the issue to court, said Pedlar.
Alternatively, said Pedlar, there is a model in use in Newfoundland and Labrador which forces public bodies to get a declaratory order from the court if they do not want to accept recommendations from the commissioner.
ATIPPA is up for statutory review in two years, said Pedlar. By tabling the annual report in the legislature and speaking to the media, he said he’s clarifying his stance on changes that need to be made to ATIPPA.
“Of course, they don’t have to wait to a statutory review to do this work. If the Legislative Assembly and the lawmakers decided that there was a change needed, then that would be up to the legislative assembly to initiate,” said Pedlar.
Public bodies will often reject recommendations with very little justification, said Pedlar. After issuing reports up to 40 pages long with their rationale behind a conclusion, Pedlar said the office will often receive responses that disagree with the recommendations with very little explanation as to why.
“That throws our whole system, which it relies on recommendations, it creates a challenge for us,” said Pedlar. “And all of a sudden, the strength that we have under our regime is lessened and weakened, because now access to information is becoming more challenging.”
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