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SOMBA K'E/YELLOWKNIFE
The NWT's privacy watchdog took Yellowknife's public school board to task last year after school officials contacted a pediatrician without the knowledge or consent of the child's mother.

Elaine Keenan Bengts, information and privacy commissioner for the NWT and Nunavut, ruled the actions of Yk Education District No. 1 officials were contrary to law and constituted an unreasonable invasion of the privacy of both the child and the mother.

The case was one of six breach of privacy complaints examined by Keenan Bengts in the 2010/2011 fiscal year, in which she also reviewed eight access to information requests. She recounted some of the cases in her 2010/2011 annual report, tabled in the legislative assembly in December.

The Yk1 case landed on Keenan Bengts' desk after a teacher observed physical symptoms in the child and called child protection officials. Acting upon their counsel, the teacher contacted a pediatrician and provided the names of the child and parent and details about the symptoms.

According to Keenan Bengts' report, school officials made an appointment for the child to see the pediatrician later that day and the teacher was asked to inform the mother.

"The mother in fact brought the child to see her own family doctor but was very upset that the school officials had spoken to another doctor," she wrote.

The information and privacy commissioner recommended that Yk1 "review its policies and procedures with respect to the reporting of suspected child welfare concerns and that those policies be revised so as to ensure that the only communication about such concerns is with the appropriate authorized authorities under the Child and Family Services Act."

Keenan Bengts reported that her recommendations were accepted "though there was no indication from the public body that they understood the seriousness of the breach."

Theoretically, the job of Keenan Bengts, a lawyer by trade, is to safeguard Northerners' rights under the broad umbrellas of privacy and access to information. However, Keenan Bengts herself admits that when somebody's privacy is breached, the victim has very little recourse.

"The problem is you can't undo a privacy breach," she said. "Once it's done it's done. It's out there. So when I'm making recommendations on privacy issues, the recommendations are really aimed at improving the system so that it doesn't happen again because I can't undo what's been done ... And there is no appeal from that because there's really nothing you can do. There's no real redress."

Recommendations are Keenan Bengts' stock-in-trade, the means by which she attempts to protect citizens' privacy - but they can, in some instances, lack the force necessary to effect change.

The degree to which the various public bodies heeded Keenan Bengts' recommendations ranged from full compliance (all recommendations were accepted) to near non-compliance.

In one case, Keenan Bengts ruled that an e-mail sent to about 30 people by the Department of Municipal and Community Affairs constituted an inappropriate use and disclosure of a complainant's information. The e-mail, which the complainant - who was not a GNWT employee - said he felt was intended to discredit him, made reference to his employment status and caused him to worry that his reputation and future career prospects had been tarnished. Keenan Bengts made three broad recommendations to the department, with more detailed suggestions contained within. She noted in her year-end report that "most of the recommendations were rejected."

Unlike information and privacy commissioners in provinces such as Ontario, Alberta and British Columbia, Keenan Bengts does not, under any circumstances, have the ability to issue binding orders.

"Beyond suggestions I have no power," she said. "My power is to make recommendations and to make those recommendations public. That has a certain amount of power behind it."

Under the NWT's Access to Information and Privacy Act, anyone may request access to a government record. The legislation is intended, at least in part, to make government institutions more transparent and accountable.

"The public body must endeavor to provide the applicant with as much of the requested information as possible, while at the same time respecting the limited exceptions to disclosure specified in the act," writes Keenan Bengts.

Generally, the public body must respond within 30 days.

If the public body does not provide the response in time or if the applicant is unsatisfied with the response, he or she can ask the commissioner to review the decision.

As with privacy complaints, Keenan Bengts is limited to making recommendations when she feels it is necessary, though anyone unsatisfied with the way a request is handled by the public body can apply to the Supreme Court of the Northwest Territories for a final determination of the matter.

Apart from making recommendations to the pertinent public bodies on a case-by-case basis, Keenan Bengts presents the government with an annual report in which she submits broader recommendations for improving access to information and protection of privacy.

Here too, however, her appeals can fall on deaf ears.

"It is frustrating, to say the least, when year after year, these recommendations remain largely unaddressed," Keenan Bengts wrote in her 2010-2011 annual report.

Instead of making new recommendations, she went on to reiterate the previous ones she felt were most important.

Keenan Bengts pointed out that 14 years after the Access to Information and Protection of Privacy Act came into force, the act has still not been reviewed.

"Most Canadian jurisdictions, including some whose legislation is newer than ours, have undertaken a general review of their access and privacy legislation to address new realities and to fix weaknesses and areas requiring clarification," she wrote. "There is a need to evolve as the world of information changes."

Keenan Bengts also recommended, among other things, that the GNWT become more pro-active in the way it releases information; that it review the fee structure attached to information requests; that the position of information and privacy commissioner become a true part-time or even full-time role, rather than one that is filled on an as-needed basis; and, most importantly, she said, that information and privacy legislation be extended to include municipalities.

"This is one of the recommendations I think I've made every year since I took office (in 1997)," she said.

After tabling her report last December, the legislative assembly sent it to the Standing Committee on Government Operations, which will review the report and send recommendations to the government. Frame Lake MLA Wendy Bisaro, the deputy chair of the committee, said the standing committee's response wouldn't be tabled until May at the earliest, when the legislative assembly begins sitting again. Once the government receives the standing committee's review, it is required to respond within 120 days and will respond based solely on the standing committee's recommendations rather than the annual report itself, said Denise Anderson, the Justice department's senior policy adviser on information and privacy.

For Keenan Bengts, the lack of order-making power is a double-edged sword.

"Obviously with order-making power there's more respect afforded to the office, I think," she said. "Not that I don't feel respected," she added quickly, "simply that when the information and privacy commissioner can make orders - enforceable orders - you're more likely to take heed."

On the other hand, she said, most of the recommendations she makes in her reviews are accepted to some degree and she feels that the restriction on her power also affords her leeway to be more inventive in finding resolutions, particularly when it comes to addressing privacy complaints, she said.

Bisaro, however, said she personally would like to see the information and privacy commissioner's powers expanded.

"It's again a personal view as opposed to a committee view but, yeah, I would like to see - I'm not sure exactly what powers - but I'd like to see our commissioner have some powers to force people to comply with her recommendations," said Bisaro.

In Ontario, Information and Privacy Commissioner Ann Cavoukian has full order-making power under Ontario's health privacy legislation as well as on a range of issues involving access-to-information requests.

"We can order information disclosed; we can order fees to be lowered or waived ... Basically any decision that a government institution makes around an access to information request, we can make an order dealing with that," said Brian Beamish, the assistant commissioner.

Beamish said having order-making power, particularly under the access to information regime, has been "enormously beneficial."

"I think government institutions understand that they need to take privacy seriously and so they want to cooperate with our investigations and they want to implement our recommendations," he said. "It can be a little harder on the access to information side and I think the ability to require the disclosure of information is enormously helpful there."

Though Ontario's privacy commissioner has only very limited order-making powers under public sector privacy legislation, Beamish said he could not think of an instance where a recommendation made by Cavoukian had been completely rejected by a public body.

"I can't recall a situation where an institution has said, 'We don't care what you recommended, we're not doing it,'" he said.

Bisaro said she felt it was "a little strange" that Keenan Bengts is unable to compel public institutions to comply with recommendations that would help protect citizens' privacy.

"If they don't agree then they just kind of shrug their shoulders and walk away," she said.

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