Thank you, Mr. Speaker. Thank you particularly for speaking slowly. Mr. Speaker, I have the Standing Committee on Accountability and Oversight report on the review of Bill 27, An Act to Amend the Access to Information and Protection of Privacy Act. Mr. Speaker, the Standing Committee on Accountability and Oversight is pleased to report its review of Bill 27, An Act to Amend the Information and Protection of Privacy Act.
The Access to Information and Protection of Privacy Act, herein after referred to as the act, was passed by the Legislative Assembly of the Northwest Territories in 1994. It came into force on December 31, 1996. The stated intention of the act is to promote, uphold and protect access to the information that government creates and receives and to protect the privacy rights of individuals.
The act provides for the appointment of an Information and Privacy Commissioner as an independent officer of the Legislative Assembly. The current Commissioner, Ms. Elaine Keenan-Bengts, was appointed on July 1, 2000, for a five-year term. Under Section 68 of the act, the Commissioner is required to submit an annual report to the Assembly. This committee has taken on as part of its mandate the responsibility to advocate for the rights of the public to an open and transparent government and has made it a practice since 1999-2000 to undertake reviews of the Commissioner's report and to in turn report back to the Assembly with its recommendations and findings.
Since it first began reviewing the Commissioner's reports, the committee has made several recommendations for changes to the act to address problems pointed out by the Commissioner. Members were pleased to see that Bill 27 addresses some of these recommendations, the details of which are explained below.
Public Review Of Bill 27
Mr. Speaker, the committee held an initial public hearing with the Minister on August 29, 2003. A further hearing took place on September 19, 2003, at which the committee heard from the Commissioner and the Minister and conducted its clause-by-clause review. During its clause-by-clause review, two motions to amend the bill were carried by the committee and concurred with by the Minister. The substance of these motions is discussed below. Following clause-by-clause review of the bill, a motion was carried to report Bill 27, as amended, back to the Assembly as ready for consideration in Committee of the Whole.
Power To Subpoena Witnesses
Mr. Speaker, Bill 27 provides the Commissioner the power to summon witnesses and require them to give evidence. This power only applies to reviews of access to information complaints. These provisions respond to recommendations made by both the Commissioner and the committee and both were pleased to see them included in this bill.
Power To Investigate And Make Recommendations On Privacy Complaints
Mr. Speaker, Bill 27 also provide the Commissioner with the power to review complaints that a public body has collected, used or disclosed personal information in violation of the privacy provisions under the act. These provisions were also in response to the recommendations and were welcomed by both the Commissioner and the committee.
Two amendments were made to these provisions during the clause-by-clause review of the bill. The first deleted a proposed section which dealt with evidence given by witnesses as the Commissioner will not have the power to summon witnesses in conducting a review of a privacy complaint. The second amendment clarifies the process to be followed by a public body after receiving the Commissioner's report on a privacy complaint. Within 90 days, the public body must decide whether or not to follow the Commissioner's recommendations and must give written notice of this decision to the Commissioner and the person who requested the review.
Deemed Refusal
During its public hearings, the committee had lengthy discussions with the Information and Privacy Commissioner on the deemed refusal provisions contained in Bill 27. The committee has also discussed the same issues with the Commissioner during its reviews of her last two reports. Because the committee adopted a position that was not favoured by the Commissioner, Members felt it was important to explain their reasons for doing so in detail.
The change in the legislation is designed to address a gap in procedure that currently exists with respect to access requests and a review of an access request by the Commissioner. Under the present legislation, a person can request information from the head of the public body. If the applicant disagrees with the decision of the public body, respecting access to the information, he or she may request the ATIPP Commissioner to review the decision. When the Commissioner has conducted a review, a report which may contain recommendations, is prepared by the Commissioner and provided to the applicant and the head of the public body. The head of the public body would then be required to make a decision as to whether the recommendations of the ATIPP Commissioner would be followed or not, and to advise the ATIPP Commissioner and the applicant of this decision.
The difficulty is that the legislation did not provide for any further remedies. If the head of the public body does not respond to the recommendations of the Commissioner, there appeared to be no further action which could be taken by an applicant. It therefore became necessary to address this gap in the legislation so that recommendations could not be ignored without consequences. All agreed that this situation had to be fixed. However, there was disagreement as to how to best remedy the legislation.
The Commissioner thought that the best approach was to have a deemed acceptance provision in the act. This would mean that if the head of the public body did not respond within the stipulated time to recommendations made by the Commissioner regarding the request for access to information, the head of the public body would be taken to have accepted those recommendations and act accordingly. She felt that this would be the clearest and simplest solution to the issue. She advised the committee that recommendations contained in her report are often detailed and there may be many recommendations contained in the report. She was of the view that if a deemed refusal provision was put in, namely a statement that if the head of the public body does not respond within the time required, he or she is deemed to have rejected the recommendations of the ATIPP Commissioner, it would cause confusion.
The committee had previously recommended in reports previously made to the Assembly that a deemed refusal provision was the most appropriate way of solving the problem. It came to this conclusion because:
- • This issue has been solved in this fashion by other provinces and their ATIPP legislation, whereas no other jurisdiction has adopted a deemed acceptance approach;
- • There is equal opportunity for confusion, whether the recommendations are deemed to be accepted or deemed to be refused;
- • The general role of the ATIPP Commissioner is akin to ombudsman. The power of the Commissioner is that of making recommendations. It is up to an applicant to take matters to court for an order if he or she is unhappy with the result. A deemed acceptance provision would have the effect of giving order making authority to the ATIPP Commissioner and this is not what the legislation as a whole intends;
- • Deemed refusal is more consistent with a failure to respond or saying nothing then is deemed acceptance;
- • The problem being addressed does not frequently occur. As in the vast majority of cases, department heads respond within the time set out in the legislation. During the public hearings with the Minister, justice staff advised that according to their records there has only been one time in the history of the act that a department has failed to respond within the allotted 30 days.
Mr. Speaker, the committee's decision to support the deemed refusal provision was not made lightly. Members wish to reassure the Commissioner that full consideration was given to her views and concerns. The committee strongly believes that this provision provides the best protection for NWT residents.
Mr. Speaker, the committee is disappointed that the government has not pursued amendments to include municipal governments under access to information and protection of privacy laws. In its reports on the Commissioner's 1999-2000 and 2000-2001 reports, the committee fully supported the Commissioner's recommendations that either separate legislation be developed to deal with the municipalities or municipalities be included under the existing act.
The committee also developed a concern that the federal government now has the authority under the Personal Information and Delinquent Documents Act to regulate how the private sector in the NWT collects, stores and uses personal information. The committee recommended in its review of the Commissioner's 2000-2001 report that the government establish legislation in order to avoid federal jurisdiction in this area and to ensure that local privacy issues are regulated by made in the NWT laws. Members are disappointed that the government has not pursued development of legislation in this area.
Acknowledgements
Mr. Speaker, the committee would like to thank the Minister and his staff for presenting the bill. The committee would also like to thank the Commissioner for her submission on Bill 27, and also for her advice and cooperation over the past three years, which has resulted in many of the amendments contained in the bill. The committee is confident that these amendments will ensure better access to information and privacy protection for NWT residents.