Diane McLeod-McKay, the territory’s information and privacy commissioner, sided with Yukon News journalist Jackie Hong in a recent legal decision to keep an access to information inquiry open. (Crystal Schick/Yukon News file)

Yukon privacy commissioner releases decision on Department of Justice access request

Yukon News reporter Jackie Hong first filed her request in 2018

The Information and Privacy Commissioner for Yukon sided with Yukon News journalist Jackie Hong in a recent legal decision to keep an access to information inquiry open.

The decision is the latest in a two-year struggle to obtain censored information from the Department of Justice.

Hong originally filed an access request in November 2018, asking for documents relating to how the department trains staff on access requests.

The Department of Justice fulfilled the request with 224 pages of records but censored four pages of information.

Under the Yukon’s access laws, public bodies are required to disclose information to the public through the Access to Information and Protection of Privacy Act (ATIPP) but can hold back some information in specific circumstances.

The department said the information from Hong’s request was held back under Section 18 (a), which allows legal advice to be kept confidential.

Hong believed the department could be misapplying the exception and challenged the decision, triggering the Information and Privacy Commissioner to take a second look.

Under the act, inquiries must be completed within 90 days. This inquiry continued past this date.

In February 2020 the IPC requested additional information from the Department of Justice as part of the inquiry. The department refused, suggesting the Commissioner had no authority to oversee the decision because the 90 days had passed.

The department argued that the timelines in the act were mandatory and disregarding them could mean that cases were drawn out indefinitely. The department noted that the privacy commissioner could have released a report with the information already gathered and the applicant could still appeal to the Yukon Supreme Court.

Hong disagreed. In written submissions, she encouraged the commissioner to interpret the time limits as “directory, not mandatory.” She writes that in theory, “a public body [like Justice] could simply stall the process until the timelines in the act are exceeded and escape accountability.”

On July 27 the Commissioner sided with Hong, releasing a legal decision that determined the timelines are “directive” and not “mandatory.” This means the inquiry can continue.

The Commissioner’s office turned down a request for an interview on the decision.

“This decision matters because it’s an issue of transparency and holding the government accountable. I know that the average person isn’t necessarily filing ATIPPs, but I think everyone should care about how the government functions, how transparent their government is and the systems that are in place to hold the government accountable,” Hong said.

“What the Information Privacy Commissioner says in the decision, essentially, is that it’s unacceptable to try and escape accountability by stalling,” she said.

According to correspondence sent to Hong on Sept. 1, the Department of Justice has still not provided the Commissioner with the documents requested in February.

“We are presently reviewing the decision made by the Yukon Information and Privacy Commissioner regarding ATP18-63R, and will be providing our formal response in due course,” said communications analyst Fiona Azizaj.

The Department of Justice refused further comment.

Contact Haley Ritchie at haley.ritchie@yukon-news.com

Access to InformationYukon justice department

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