The Yukon’s privacy legislation is outdated and ineffective, says privacy commissioner Hank Moorlag.
For more than nine years, Moorlag, who doubles as the territory’s ombudsman, has made recommendations to Community Services on how to improve government.
And the same problems keep coming up: inadequate communication, unreasonable delay and questions about whether or not standard procedure has been followed.
But, year after year, Moorlag’s reports fall on deaf ears.
“Sometimes I think they do nothing,” Moorlag said Tuesday, after his 2005 report was tabled in Yukon’s legislature.
“I certainly don’t receive any formal written response of any kind.”
And despite several requests, Community Services minister Glenn Hart has never bothered to meet with him, he said.
“I’ve been banging on that door for some years now, to provide some clarity and scope to the act.
“I’m trying not to take it personally.”
As ombudsman, it’s Moorlag’s job to ensure fairness and accountability in public administration.
As privacy commissioner, he carries out independent reviews of the Access to Information and Protection of Privacy Act.
There are serious problems with the Yukon’s privacy legislation, he said.
Foremost in Moorlag’s mind, and highlighted repeatedly in his reports, is the need to come up with an appropriate definition for a “public body” that his office has the power to investigate.
In 2000, the Yukon Medical Council challenged Moorlag’s jurisdiction. It claimed his office had no authority over the council.
Yukon Supreme Court ruled in Moorlag’s favour, but the decision was overturned in Yukon Court of Appeal.
As a result, there are “gaps” in the Yukon’s legislative framework for access and privacy rights, said Moorlag.
His jurisdiction does not cover the Yukon Workers’ Health and Safety Compensation Board, the Yukon Utilities Board, the Yukon Energy Corporation or any other arm’s-length government agencies considered public bodies in all other Canadian jurisdictions, he said.
“Yukoners are all hamstrung.
“Where do they go to make access requests of those public bodies?
“How do those bodies decide what principles they need to abide by?
“A legislative decision needs to be made.”
But fixing the legislation is not a priority for the Yukon Party government, or for past governments, said Moorlag.
“I am aware that non-legislative options are being considered, and a review is being planned as time goes on, which I think translates into never.
“It’s very disappointing, because this has everything to do with Yukoners’ rights of access and privacy protection.
“We have lost ground with this legislation.”
By Hart’s own admission, the act needs to be reviewed.
In May 2005, Hart likened the act to a piece of Swiss cheese — “full of holes.”
He promised a review.
But Hart changed his mind.
“We’re trying to make as many changes as we can, without going to the legislation,” Hart said Tuesday.
“It’s not just about access to information, it’s about providing privacy too, especially in the field of health.
“That seems to get lost in this rush to get information into the process.”
Hart said he has a favourable letter for Moorlag that praises the government for non-legislative improvements, such as training its staff to make information more readily available.
But the Yukon will wait to see how other Canadian jurisdictions overhaul their privacy legislation before reviewing its own legislation, he said.
“It’s beneficial for us to see the results of those reviews, so let’s see what they’ve got and let’s try not to make the same mistake twice that they did.”
That approach has the potential to become a very convenient excuse for not doing anything, said Moorlag, noting that Alberta has finished three reviews of its privacy legislation, and British Columbia is finishing its second review.
“If we continue to wait for the next review to come along, our review is not going to happen at all,” he said.
“The fix is easy. All other jurisdictions make a decision about whether or not a public body is on schedule A, and something is either on the list or it is not.”
Moorlag acknowledged that some non-legislative improvements have been made to the Yukon’s privacy policy.
In past reports, he identified a “culture of secrecy” within government ranks that seems to be less of a problem at the moment, he said.
But the access to information act is still not given its due, he said.
“I have a continuing concern that, eight years after the act came into force, the purpose and intent of the legislation hasn’t made its way into the culture of the public service.”
When a department receives a request for information, “they’re not thinking about the act, they’re thinking about department policy,” Moorlag explained.
The government is under no obligation to take his recommendations, but his office exists for a reason, he noted.
Otherwise, personal information can be collected and distributed, or public information can be withheld, without independent scrutiny, said Moorlag.
“Because there is the legal right to do something, that doesn’t mean it’s the right thing to do.”