The territory’s information and privacy commissioner is urging the Yukon government to consider updating the Access to Information and Protection of Privacy Act so more information could be made public.
Our current law exempts some information from being released to the public. Elsewhere, similar legislation often includes an override that would allow excluded information to be released if it was found to be in the public interest to do so.
The idea is to “consider whether or not it is, despite those exemptions, still in the public interest to disclose that information when balanced against the purpose of the exemptions, essentially,” privacy commissioner Diane McLeod-McKay said.
The commissioner wrote a letter to Public Works Minister Wade Istchenko on April 3, after hearing about the Truth and Reconciliation Commission’s work to identify students who died or went missing while attending residential schools.
“If a public interest override provision were included in the ATIPP Act a public body would be in a position to disclose information to an applicant, such as the Truth and Reconciliation Commission, after determining the public interest in disclosure outweighs the purpose of an exemption that applies under the ATIPP Act.”
As of right now, officials with the Department of Health and Social Services are releasing all the information they can to the commission. But the Yukon’s Vital Statistics Act prevents a cause of death from being made public until 100 years after a person has died.
Public interest overrides exist in many other jurisdictions, though each law is a little different.
In Ontario, an override has been in the province’s privacy legislation since it was created in 1988.
“There are times when an exemption applies under the act for information that has a confidentiality aspect to it. But sometimes there’s a very strong public interest to seeing the record,” said David Goodis, director of legal services for the information and privacy commissioner of Ontario.
“The public interest override allows the commissioner to weigh the competing interests of confidentiality and the public interest in disclosure. In the right case, say the override applies and the record should be disclosed.”
In Ontario, a government department could apply the rule itself, but that rarely if ever takes place, Goodis said.
What usually happens is that the request is refused and on appeal someone argues that the override should apply.
“The commissioner has the last word on that,” he said.
Ontario’s public interest override has been used to release records concerning public safety at a nuclear generating plant, the safe operation of a petro-chemical facility, preservation of a particular building as a heritage building and salary information about senior police officials.
The office did not have data for how often the override is used. Goodis said it’s rarely applied, likely around a dozen times in its history.
In Alberta and B.C. the override that exists requires there be urgency to the need for information, McLeod-McKay said.
“In the case of the Truth and Reconciliation Commission, those sections wouldn’t apply because there is no urgency to the disclosure of that information,” she said.
“So that’s why I sort of lean towards the Ontario model, because I thought it more suited the purpose.”
McLeod-McKay wouldn’t say for sure whether or not all the information sought by the Truth and Reconciliation Commission would be made public if the territory had a public interest override. That would all depend on which model of a law was chosen.
But she says it’s a possibility.
“That’s the kind of information that these kind of provisions are meant to serve. In terms of giving that extra look at whether or not there is a compelling public interest to the disclosure of these records, I would say that there may be.”
But there is other work that would need to be done before any override could even apply to the information that was sought by the commission.
Currently the Vital Statistics Act is one of a few acts in the territory that trumps what a person could see under our access-to-information laws. In her letter to Istchenko, McLeod-McKay says that laws that are paramount over the ATIPP Act may unnecessarily restrict access to information.
This is not the first time that a Yukon information and privacy commissioner has called for a public-interest override.
In 2011 when the ATIPP legislation was last being overhauled, then-commissioner Tracy-Anne McPhee expressed similar concerns.
The act is next scheduled to be reviewed in 2015. McLeod-McKay, who started the job in June, said a public-interest override will be one of the recommendations she makes.
Istchenko was not available for comment.
Cabinet spokesperson Elaine Schiman said the government appreciates McLeod-McKay’s letter and her suggestions.
“In the short term, Health and Social Services has been working hard to meet the needs of the Truth and Reconciliation Commission and has, we understand, found a way to provide the TRC with information that does meet their needs.”
In the long term, the information and privacy commissioner will be consulted when the ATIPP Act is reviewed in 2015, she said.
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