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