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COMMENTARY: Privacy commissioner outlines changes in privacy legislation

Diane McLeod-McKay

Diane McLeod-McKay

Yukon Information and Privacy Commissioner

Right to Know Week takes place September 27th to October 3rd this year and is a perfect time to talk about the new Access to Information and Protection of Privacy Act (ATIPPA) that went into effect in the Yukon on April 1, 2021.

The new ATIPPA contains many modern features that facilitate innovation by public bodies covered by the Act, by authorizing the use of emerging technologies to deliver services. It also increased the obligations of public bodies in many areas, including security of personal information. As well, it provides my office with additional powers of oversight, including the power to initiate an investigation on my own motion.

ATIPPA governs the protection of personal information and access to information that is held by the Yukon’s public bodies.

There are several new provisions in ATIPPA that Yukoners should be aware of to understand their access to information rights.Public bodies are now required to make certain categories of information publicly available for access without an access request. Categories include manuals that guide the activities of employees, public opinion polls, research and statistical documents, and advisory reports prepared for public bodies. This new requirement is a positive step toward ensuring Yukoners can easily access information that will help them exercise their democratic rights and hold government accountable.

Under the new Act, the head of a public body is accountable for compliance and for all decisions made under the Act, including for access to information. Heads of Yukon government public bodies are the Ministers. For all other public bodies, the head is the most senior official, such as a president of a corporation or chair of a board. The result of this change is that there is now clear accountability for compliance with the Act, which did not exist in the prior Act. For access to information programs to work effectively, a top-down approach to compliance is necessary. The new ATIPPA embeds this approach into its design.

There is a new process for requesting extensions. In the prior Act, public bodies could request extensions for up to 60 days from the Yukon government’s ATIPP Office. My experience in reviewing these extensions is that they were routinely granted, which lengthened the timeline for response. In the new Act, heads may request an extension from the ATIPP Office for up to 15 days. If more time is required, the head must request an extension from my office. In deciding whether to authorize an extension, we consider several factors. There is guidance for public bodies on our website that sets out our decision-making process for granting extensions including the factors we consider.

The new Act expands Yukoners’ right of access to information where there is a public interest in disclosing the information that outweighs the public interest in withholding it. This provision is referred to as the “public interest override”. It requires the head to consider whether there is a public interest that overrides their decision to refuse access to information under one of the exceptions to the right of access. If a person is of the view that a head refused access to information without considering the “public interest override” provision, they may make a complaint to my office.

The new Act contains a “duty to warn provision” that differs slightly from the prior Act. The prior Act required a public body to disclose recorded information to the public or a group if the information revealed the existence of a serious environmental, health, or safety hazard to them. To my knowledge, this provision was never used by any public body. In the new Act, the head of a public body must disclose recorded information (including personal information) that is held by the public body to an individual, a group, or the public, if the head determines that without disclosure of the information to them, they are or are likely to be at risk of significant harm that is caused by a serious environmental, health or safety hazard.

The number of public bodies identified as being subject to the new Act increased to 129 from just 23 in the prior Act. The list of public bodies can be found in the Access to Information and Protection of Privacy Regulation.

One of my new duties under ATIPPA is to inform the public about the Act, which is one of my goals in writing this op-ed. I encourage Yukoners to contact my office with any questions about their rights under ATIPPA, the obligations of public bodies, and the role of my office.