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GNWT seeks public input for information law rewrite
Commissioner urges expansion to cover municipalities, ensure preservation of records

Shane Magee
Northern News Services
Saturday, April 30, 2016

SOMBA K'E/YELLOWKNIFE
The territorial government is seeking input as it plans to revise a law that allows access to records it holds.

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The GNWT is seeking feedback during its review of the Access to Information and Protection of Privacy Act, which allows people to request government records like these heavily redacted e-mails about suspected fentanyl overdoses at the North Slave Correctional Centre from the Department of Justice. - NNSL photo illustration

The Access to Information and Protection of Privacy Act is a way for anyone to request information about how government spends money and makes decisions. Governments are required to respond within a time limit to the requests although there are some broad exemptions to protect security, personal information and the "frank exchange of views" among GNWT staff.

"It's one of the ways that we can - on the access-to-information side - that we can hold our government accountable," said Elaine Keenan Bengts, the territory's information and privacy commissioner.

The commissioner is an arms-length officer of the legislative assembly who oversees complaints and issues with how the law is used such as when someone isn't satisfied with the records released or a privacy breach.

As part of a review of the law, the Department of Justice committed in 2012 to carry out, a summary of the current aspects of the law and questions about potential changes has been posted online.

The document asks a series of questions about potential changes such as whether the filing fee for an access request of $25 should change (some provinces like New Brunswick and Newfoundland and Labrador have eliminated the fee while others charge a lower fee).

It's seeking feedback through a form on the Department of Justice website, mail and e-mail until June 15.

Keenan Bengts encouraged people to write about their experiences using the legislation and issues they'd like addressed.

She hopes the GNWT will finally make the law apply to community governments. The territory is one of four jurisdictions in the country that exclude municipal governments from right-to-information legislation.

"I have made the recommendation that municipal governments need to be accountable like any other level of government," said Keenan Bengts, who said she submitted dozens of pages of recommendations to the government as part of a review of the law.

Yellowknife Mayor Mark Heyck has previously told Yellowknifer the municipality would be open to coming under the law.

The municipal aspect is completely absent from the callout for public engagement on the Department of Justice website. Sue Glowach, spokesperson for the department leading the review, stated in an e-mail that aspect had been addressed in previous consultations with community governments but people are still welcome to make comments about it when providing feedback.

Keenan Bengts has joined information commissioners across Canada in urging governments to amend access-to-information laws to include provisions requiring the preservation of records. The GNWT's law does not currently have such a provision.

"There has to be a duty to document," she said.

As well, she's hoping the law, largely unchanged since its introduction in 1996, will advance into the 21 century by including provisions to deal with electronic communication such as text messages between government officials making policy decisions.

"More and more often I'm getting requests for information where the applicant says 'I know they're texting back and forth,' and they get no records back," she said.

There were 203 access to information requests with the GNWT in the 2014-15 fiscal year, down from a peak of 810 in 2012-13 as a result of the residential school claims process.

As the name suggests, the law also sets out safeguards for personal information held by the government, such as health records. The volume of complaints the commissioner deals with has risen.

"More and more the issues are not access to information but breaches of privacy," she said.

A recent example was when Northwest Territories Power Corporation accidentally released some customer information to a person who wasn't supposed to have that data.

The power corp. notified the commissioner, the people affected and had the person who received the data sign a non-disclosure agreement.

"That's the way it should be but there's no requirement that they do that," she said.

Another issue raised in the public input questionnaire is whether the role of the access-to-information commissioner should change. Currently, the position acts like an ombudsperson who can only make recommendations to government when complaints are filed to her office.

Other provinces have given the commissioner the ability to order governments to release records.

Keenan Bengts said she sees benefits to both models.

"For the most part, public bodies more often than not accept my recommendations or accept them with small tweaks," she said. Outright rejection is more rare.

Newfoundland's new law has a hybrid where the information commissioner makes recommendations but if the government wants to refuse access, it has to go to court to get a ruling. That moves the onus from the person seeking information to the government.

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