Crystal Schick/Yukon News file Information and Privacy Commissioner Diane McLeod-McKay.

Acknowledging the existence of records is an invasion of privacy: privacy commissioner

It’s the first time Diane McLeod-McKay has been asked to review that part of Yukon’s access laws.

The territory’s Information and Privacy Commissioner has ruled the Public Service Commission (PSC) was correct in refusing to confirm or deny the existence of certain records for an applicant seeking information about a PSC employee.

Diane McLeod-McKay issued the 19-page decision document July 3, though a press release about the decision was not released until Aug. 12.

As she explained in an Aug. 12 interview, that provided the required time for the PSC to respond to the decision and implement any recommendations. The PSC accepted and implemented one recommendation provided by McLeod-McKay ahead of the 30-day time limit.

“Looking at the ATIPP (Access to Information and Protection of Privacy) Act as a whole, and its purposes, it is clear that exceptions to access to information are carefully crafted to limit access only as much as necessary to protect certain interests,” said McLeod-McKay. “These exceptions were designed to strike the correct balance between the right of applicants to access information and the need for public bodies to limit access in specific circumstances. This provision should only be relied on by public bodies when it is necessary to protect certain interests.”

On Sept. 21, 2018 the PSC received an access to information request from an applicant, who was seeking personal information about another individual from between Nov. 20, 2017 and June 30, 2018.

According to the decision, the applicant sought: “Any communication between [Commission Employee] (Director of Labour Relations…) and [third party] including, but not limited to emails, phone calls, written messages, memos, notes, text messages, letters, etcor any communications where [third party] is the subject or topic.”

In October, the PSC refused to confirm or deny even the existence of records under section 13(2)(c) of the ATIPP Act, which states a public body may refuse to confirm or deny the records’ existence for those containing personal information about the applicant or a third party.

The applicant looking for the information then requested the review of the decision by the IPC.

McLeod-McKay said, a public body can’t simply refuse to confirm or deny the existence of records by citing s. 13(2)(c) of the ATIPP Act. Officials must provide reasons — as outlined in the act — for the refusal. 

For example, “… when doing so would amount to an unreasonable invasion of an individual’s personal privacy. It must then satisfy itself that refusing to confirm or deny the very existence of the requested record would promote or protect the same interest.”

Other reasons could centre on law enforcement and/or harassment issues.

“That’s the key thing,” McLeod-McKay said, stressing the importance of considering the entire act.

In this case McLeod-McKay found that the PSC had met the burden of proof to rely on this provision, because it proved that revealing whether the records existed would amount to an unreasonable invasion of an individual’s personal privacy.

A recommendation McLeod-McKay made to and was subsequently accepted and implemented by the PSC is not being shared publicly in order to protect personal information, McLeod-McKay said.

This marks the first time this section of the ATIPP Act has been reviewed by the IPC, she said.

Throughout her decision, McLeod-McKay cited access to information and privacy protection cases in other regions including British Columbia, Alberta and Ontario.

The decision is available on the IPC’s website.

Should the applicant choose to challenge McLeod-McKay’s decision, they would have to take it to Yukon Supreme Court for a ruling.

Contact Stephanie Waddell at stephanie.waddell@yukon-news.com

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