The offices of the Yukon Ombudsman, Information and Privacy Commissioner and Public Interest Disclosure Commissioner all opened fewer files in 2019 compared to the year before, according to newly-released annual reports.
However, the workloads were still heavy even with the addition of another staff member, and the majority of files were not resolved within targeted timeframes.
Diane McLeod-McKay, who holds all three offices, released her 2019 summary reports the afternoon of July 21.
The Ombudsman’s office, which handles complaints about fairness, opened 19 cases involving 10 authorities in 2019, down from 30 cases in 2018. All of the files were settled via the officer’s informal case resolution team, and in most of the investigations the office found that the authority had acted fairly.
In cases where there were issues, the report says — for example, the case of a placer miner who couldn’t access his claim due to a pipe blocking the road, and where the Department of Energy, Mines and Resources was handling the issue when it should have been Highways and Public Works — authorities accepted the office’s suggestions on how to improve processes.
In total, including files carried over from previous years, the office was able to reach settlements on 13 files within its 90-day target. However, 15 files took more than 90 days to close, and three files are still open.
Meanwhile, the information and privacy office opened 111 files related to the Access to Information and Protection of Privacy and Health Information Privacy and Management acts in 2019, compared to 136 the year before.
The report notes that even with the drop, it was still a huge increase compared to the period between 2013 and 2017 when an average of 46 files were opened. It also says that issues with access to information, including confusion on the part of access-to-information coordinators due to a lack of training and improper searches for records still persist.
“Based on our experience over the past year, the access to information program operated by the Yukon government is in need of repair,” the report says.
As well, the report notes the “the lack of consequences for non-compliance by a public body or custodian with the ATIPP Act and HIPMA,” describing the information and privacy commissioner’s lack of power to enforce recommendations made to public bodies as “the plight of the toothless tiger.”
“During 2019, I saw a consistent lack of cooperation by one Yukon government department that resulted in my inability to settle investigations and requests for reviews, due to delays in providing evidence,” the report says, apparently referring to a case involving the Department of Health and Social Services.
“In many cases, requests for information to settle these matters went unanswered. This same department challenged the IPC’s jurisdiction on multiple occasions to investigate two complaints, despite the fact that it was clear I had the necessary jurisdiction. It then ignored my notice to produce documents for the investigation. It also agreed to follow 10 recommendations made in two reports issued by the IPC, but then missed all the deadlines to follow those recommendations and, in the end, failed to follow two of them. It also refused a meeting with the IPC to discuss whether there were compliance issues related to the acquisition of highly sensitive records.”
Overall, the information and privacy office resolved 39 ATIPP files in 2019, opened 79 and carried over 80 into 2020. It resolved 25 HIPMA files, opened 32 and carried over 36.
Finally, the Office of the Yukon Public Interest Disclosure Commissioner opened nine files in 2019, three of which were disclosures of wrongdoing. It had eight files carry over from 2018 and carried over 14 files into 2020.
The highest-profile of the cases were two disclosures of wrongdoing involving group homes, which prompted McLeod-McKay to release a special investigation report that found a youth had been improperly evicted from a home.
The report notes that investigations under the Public Interest Disclosure of Wrongdoing Act are resource-intensive, and that in the majority of cases, the office has not been successful in meeting its target of closing files within one year.
In an interview, McLeod-McKay said she plans on addressing some of the legislative shortcomings that affected her offices’ work in 2019 this year, particularly in regards to the Ombudsman Act and when HIPMA and PIDWA come up for review.
“I am the only ombudsman in the world that we could find that does not have own-motion authority … So it’s a bit frustrating and I am planning on getting that to the Speaker,” she said, referring to the ability to launch an investigation without receiving a formal complaint first, or to make enforceable orders.
While upcoming ATIPP legislation gives the information and privacy commissioner own-motion authority to launch investigations and privacy-practice audits, it doesn’t give the commissioner order-making powers, while HIPMA makes no mention of own-motion authority at all.
McLeod-McKay said she would be pursuing having own-motion authority added to HIPMA. When it comes to PIDWA, she said she would also be seeking to have her role and authority as Public Interest Disclosure Commissioner clarified so that her office doesn’t run into the same roadblocks it ran into during the group homes investigations — issues about jurisdiction, government lawyers insisting on sitting in on interviews or getting the department to hand over documents, for example.
It’s not all bad though, she emphasized — some public bodies have been getting better in working with her offices, and that own-motion authority was added to the ATIPP Act update is a sign that the government is receptive to her feedback.
“There’s certainly lots of good things that are happening,” she said.
Contact Jackie Hong at firstname.lastname@example.org