City shuts door on information watchdog
Elaine Keenan Bengts again calls on government to reform access-to-information law
Shane Magee
Northern News Services
Friday, October 9, 2015
SOMBA K'E/YELLOWKNIFE
The city denied the help of the information and privacy commissioner when she attempted at some point over the past two years to assist a person who had requested documents from the municipality, although it's not clear why.
The commissioner, responsible for investigating complaints of privacy breaches and overseeing the Access to Information and Protection of Privacy Act, suggested in her 2014/2015 annual report the denial points to the need for the GNWT to expand the legislation to cover municipalities.
The act allows anyone to file, with a $25 fee, a formal request for records they want to access held by public bodies, such as the GNWT or health authorities. But the existing access law does not cover municipalities, meaning they have no obligation to respond to requests.
"Once again this year, I was asked to assist an individual who was attempting to seek access to records held by the City of Yellowknife," commissioner Elaine Keenan Bengts wrote in her report tabled in the legislative assembly last week. "While I invited the city to allow me to assist in resolving the impasse, my offer to assist was not accepted. It is time that municipal governments, who spend public funds, have legislated obligations with respect to both access to information and privacy issues."
Keenan Bengts was not available for an interview Tuesday.
The city was not able to speak to what was raised in the report without further details, such as a range of dates, topic or specific department to narrow down what the commissioner was referring to, said spokesperson Nalini Naidoo.
The recommendation to reform legislation that covers community governments was one of several in her report that again calls on the GNWT to improve the law. Her report outlines specific cases of privacy breaches or access to information complaints she has dealt with.
She highlighted a case in which Yellowknifer requested records in 2014 from Northwest Territories Power Corporation.
The request sought records covering former chairman Brendan Bell's involvement in pitching the linking of Taltson and Snare hydroelectric power systems, with a spur to the north to supply the diamond mines. The GNWT scaled down the concept a year ago after the estimated cost of the project nearly doubled to $1.2 billion.
Yellowknifer sought records, which were mainly e-mails from 2013, to look into what role Bell played in talks to link the power system to the mines. He was a vice-president with Dominion Diamond Corporation at the time as well as chairman of the power corp.'s board of directors.
He has since left the board, citing personal reasons.
The power corporation blacked out parts of the e-mails released to the news organization that would reveal the names of the mines. The news organization appealed to the information commissioner seeking to have her rule on whether the power corp. rightly blacked out the details. Yellowknifer argued that since public funding was involved, it ought to know more about the talks. The power corp. said disclosing more could reveal details of preliminary discussions or could influence company stock prices.
Keenan Bengts ruled further details such as the economic impact of the mines should be revealed but said the power corp. properly withheld specific diamond mine names.
The commissioner doesn't have the power, under the current law, to take the public body to court to get a ruling on whether the records should be released. Now, the onus falls on the person requesting information.
Yellowknifer went to the NWT Supreme Court to get the details released but ended its effort earlier this year.
"We quickly realized we were not going to the Supreme Court for a decision, we were launching a lawsuit against the power corp. with all its attendant legal requirements, strategies, risks and costs," it states in the annual report. Although it doesn't name the person, the report is quoting Yellowknifer managing editor Bruce Valpy: "This is enough to stop anyone with limited resources dead in their tracks, which it did."
The case prompted Keenan Bengts to recommend changes to her power to deal with appeals. She wrote she can only recall three instances where someone used the existing system to go to court, a process she described as a "very expensive and complicated undertaking."
"To fully commit to the openness and accountability promise of the Access to Information and Protection of Privacy Act, there has to be an affordable and uncomplicated way to appeal decisions made by public bodies under the Act," she wrote in her report. "If the Information and Privacy Commissioner had order making power, the onus of appeal would fall to the public body, not to the applicant."
The commissioner highlighted that the justice department is undertaking a review of the legislation, something she calls "absolutely necessary."
The "comprehensive review" that includes looking at the access laws of other jurisdictions has been underway for several years, said Denise Anderson, the manager of the department's access and privacy office.
That review will look at recommendations from the privacy commissioner as well as a legislative assembly committee that has also called for changes.
It will be an issue for the territorial government elected later this fall to deal with, Anderson said.
Public consultations on the legislation may take place "early in 2016," she said. That would involve presenting findings from the review and seeking feedback on what the public wants in an updated law.
