This is page numbers 5601 - 5648 of the Hansard for the 18th Assembly, 3rd Session. The original version can be accessed on the Legislative Assembly's website or by contacting the Legislative Assembly Library. The word of the day was public. View the webstream of the day's session.

Topics

Mental Health Services in Regions
Members' Statements

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The Speaker Jackson Lafferty

Masi. Members' statements. Member for Hay River North.

Dredging the Hay River
Members' Statements

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R.J. Simpson Hay River North

Thank you, Mr. Speaker. Let's talk about dredging. When I was growing up, there used to be a sandbar at the public beach in Hay River maybe a couple of hundred feet out. You couldn't really see it from the shore, but seagulls would land on it, so it became known as Seagull Island. To get there, you would have to wade out waist-deep in water. About 10 years ago, a former Hay River MLA stood up in this House and talked about how Seagull Island had changed because of the build-up in sediment, saying, "You could practically walk halfway to Fort Providence now without getting wet." Obviously, she was exaggerating, but Seagull Island hasn't been an island in a long time.

A while ago, you could have probably called it Seagull Peninsula. Then it turned into Seagull Point. I was out there just a couple weeks ago, and what was once a submerged sandbar is now hundreds of metres of dry land. It juts out into the Great Slave Lake, curves west and then south, resulting in a brand new body of water, thousands of square feet in area that is physically separated from the lake. Let's call it Seagull Lagoon.

On the other side of the island, the West Channel is increasingly becoming isolated from the lake, as sediment is deposited at the mouth of the channel, merging islands with the mainland, and creating the perfect barrier to block ice that would otherwise flow out of the channel into the lake during breakup.

Mr. Speaker, things have gotten worse since I stood up in this House three and a half years ago and asked this Cabinet how they were going to work towards fulfilling the GNWT's mandate of getting the Hay River dredged. The statement I made that day was similar to the one made by the previous MLA from Hay River North at the beginning of his term. His statement was similar to the one made by the former Member for Hay River South the term before that. The answers that all three of us have received over and over again from the three different Ministers of Transportation have all been the same. They say dredging is not the GNWT's responsibility, but they'll work with the federal government to see if they'll pay for it.

Well, Mr. Speaker, over the last quarter century, the feds have made their position clear by denying applications put forth by the GNWT and, in some cases, outright ignoring letters sent by our Ministers related to this issue.

Mr. Speaker, they say the Government of Canada pays attention to our proceedings, so instead of asking our Cabinet to lobby the feds, I'll address the rest of my comments directly to the federal government: start doing your job and resume dredging operations in Hay River. This is an economic issue, this is a public safety issue, and, as far as I'm concerned, this is a federal election issue. Thank you, Mr. Speaker.

Dredging the Hay River
Members' Statements

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The Speaker Jackson Lafferty

Masi. Members' statements. Item 4, reports of standing and special committees. Member for Kam Lake.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
Reports Of Standing And Special Committees

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Kieron Testart Kam Lake

Thank you, Mr. Speaker. Your Standing Committee on Government Operations is pleased to provide its Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act, and commends it to the House.

The Standing Committee on Government Operations ("the committee") is pleased to report on its review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act or ATIPP Act.

Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act was sponsored by the Department of Justice and has been referred to the Standing Committee on Government Operations for review. The bill proposes to:

  • Provide for the application of the act to municipalities that are designated in regulations;
  • Clarify the types of records exempted from disclosure because they would reveal Cabinet or Financial Management Board confidences and provide for a similar exemption for municipal records;
  • Allow for a compelling public interest to override particular statutory grounds providing that a record is to be exempt from disclosure;
  • Revise time limits by restating them as business days rather than calendar days, shortening some turn-around times, and adding time limits for certain actions required under the act that did not previously have them;
  • Set out a process for the Information and Privacy Commissioner, or IPC, to consider requests from heads of public bodies to extend time limits for responding to requests for access;
  • Address the privacy and access considerations related to human resources documents, including employee evaluation and workplace investigation documents;
  • Clarify exemptions from disclosure relating to business interests;
  • Permit the collection and disclosure of information for the delivery of common or integrated programs and services;
  • Update the general powers of the IPC;
  • Provide for a review of the act by the Minister every seven years; and
  • Make other adjustments intended to improve language and enhance clarity in the act.

Now in its 23rd year, the Access to Information and Protection of Privacy Act came into force on December 31, 1996. The stated purposes of the act are to make public bodies more accountable to citizens and to protect the privacy of personal information held by public bodies. Public bodies include the Government of the Northwest Territories and its agencies, boards, commissions, and corporations, as set out in the regulations. The act achieves its purposes by:

  • Giving individuals the right to access and the right to request the correction of personal information about themselves held by public bodies;
  • Setting out limited exceptions to the right of access;
  • Preventing the unauthorized collection, use, or disclosure of personal information by public bodies; and
  • Providing for an independent review of decisions made under the act by the Information and Privacy Commissioner.

Although the act has been amended from time to time to respond to specific issues raised by stakeholders and standing committees, the act had never subjected to a comprehensive review until the Department of Justice committed to undertake this work in 2012. The results of that review informed the development of Bill 29.

Bill 29 received second reading in the Legislative Assembly on October 30, 2018, and was referred to the Standing Committee on Government Operations for review.

The work of the standing committee to amend Bill 29 is set out in this report. The report contains recommendations to government on the implementation of the revised legislation. It also provides a rationale for the motions moved by the committee to amend specific provisions in the bill. These motions are listed in Appendix 1 in order of their appearance in the bill and are referred to in this report by their number assigned in the appendix.

The Public Review of Bill 29

In this digital age, where data of all descriptions is easily accessible by personal computer and phone, people have become increasingly aware of the need to protect their personal information and the potential impacts of failing to do so. At the same time, the public is demanding more accountability and openness from government. Citizens want access to documents held by government, so they may determine if government decision-making is reasoned, defensible, and being carried out in accordance with the legislative and policy framework that government has put in place.

In this environment, it is vitally important to have strong access and privacy legislation governing how the public sector collects, manages, and discloses personal information. Committee was pleased to see the Minister of Justice bring forward Bill 29, in accordance with mandate commitment 5.3.1.

In addition to soliciting input through letters sent to stakeholders, the committee travelled to, and held public hearings on Bill 29, during the week of January 21, 2019, in Fort Smith, Inuvik, and Fort McPherson. A final public hearing was held in Yellowknife on January 24, 2019. Committee thanks everyone who attended these meetings or provided written submissions to the committee for sharing their views on Bill 29.

Committee noted a great deal of public interest in Bill 29. In addition to the input received from residents in the communities we visited, committee received both verbal and written submissions from:

  • The City of Yellowknife;
  • The NWT Association of Communities;
  • OpenNWT; and
  • The Information and Privacy Commissioner of the Northwest Territories, Ms. Elaine Keenan Bengts, who was accompanied by former British Columbia Information and Privacy Commissioner, Mr. David Loukidelis.

Committee also received written submissions from the Hamlet of Tulita and the Northwest Territories Branch of the Canadian Bar Association.

Given the breadth of input and the complexity of the legislation, public input is noted in greater detail under the topic headings below.

At this time, Mr. Speaker, I would like to hand the reading of the report over to my colleague, the honourable Member from Deh Cho.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
Reports Of Standing And Special Committees

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The Speaker Jackson Lafferty

Member for Deh Cho.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
Reports Of Standing And Special Committees

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Michael Nadli Deh Cho

Mahsi, Mr. Speaker.

WHAT WE HEARD AND DID

Scope of the Act

Inclusion of Municipalities

Input Received

Clause 2 of Bill 29 provides for Northwest Territories' municipalities to be included under ATIPP by extending the definition of a "public body" to include municipalities as defined under the Cities, Towns and Villages Act, the Charter Communities Act, or the Hamlets Act. Clause 2 also specifies that a municipality must be designated in the regulations in order for ATIPP to take effect. This mechanism ensures that municipalities do not immediately assume responsibilities under the amended legislation when it goes into force, but rather when the GNWT amends the regulations.

Clause 10 of Bill 29 specifies which municipal records are to be exempt from disclosure under ATIPP. In her submission, the IPC urged the government to consult with her office regarding which municipalities are to be designated as public bodies and indicated that she hopes to see the larger communities designated first. She also noted her support for the protection provided to municipal confidences under clause 10.

In its submission, the City of Yellowknife emphasized the degree to which they are already very open and transparent. The city claimed to already be covered under PIPEDA, the federal Personal Information Protection and Electronic Documents Act. The city expressed concern about the potential impact of ATIPP on their Whistleblower Policy, which allows complainants to remain anonymous in order to encourage reporting without fear of reprisal. The city is also concerned about its capacity to implement this change and the costs associated with the requirement to designate an ATIPP coordinator. They said:

"If ATIPP is amended to include municipalities, it is imperative that the territorial government provide appropriate financial, records management and training resources to municipalities."

The Hamlet of Tulita noted that its records management is probably similar to other NWT communities in that there is no standardized indexing system or centrally maintained file system. They said:

"Being able to access information is critical to the effective functioning of ATIPP. Council would like to see, before any such action is taken to require community governments to become compliant, that the GNWT (probably through MACA) provide training and assistance to the community governments in standardized record management."

The hamlet went on to suggest that perhaps the electronic systems being used in larger NWT communities could be acquired by the Department of Municipal and Community Affairs (MACA) as a standard records management system for all communities.

The NWT Association of Communities (NWTAC) advised the committee that they had passed a resolution stating:

"The implementation of ATIPP legislation to communities needs to be done in a measured, realistic and highly planned way; and further, that any implementation plan needs to include adequate resources and training to ensure its success."

In addition, the NWTAC called upon the committee to do all it can to ensure that the GNWT honour commitments made in 2018 to support a staged implementation recognizing operational challenges, and to ensure that the Departments of Municipal and Community Affairs and Justice work with community governments, to assess capacity, resource requirements, and training, and consult with communities on implementation timing.

In its submission, OpenNWT noted that the:

"Inclusion of municipalities under the act is an important one that has been a long time coming...Much of the current conversation has been filled by "what ifs" -- what if there are too many requests, what if records capacity isn't there -- these are all systems that can evolve with time."

This submission further pointed out that when the act was first brought into force, the GNWT "did not have any advanced records management system in place, either."

Committee Response

The committee does not take a position on the application of PIPEDA to municipal governments, but notes guidance on this subject from the federal Information and Privacy Commissioner which suggests that, contrary to the city's assertion, PIPEDA may have limited application to municipalities in the NWT only to the extent that it applies to information about municipal employees.

With respect to the city's concern regarding the impact of ATIPP on the confidentiality of the process under its Whistleblower Policy, again, the committee does not take a position on this. Committee does, however, note the following provision from the Government of the Northwest Territories' Harassment Free and Respectful Workplace Policy which suggests that protecting the anonymity of complainants is inconsistent with due process:

7. The investigation process is conducted following the principles of procedural fairness and natural justice. This means:

(a) Only those complaints in which the complainant's identity is disclosed may be taken through the mediation and/or investigation processes. Anonymous complaints do not allow for due process.

The committee supports the inclusion of municipalities under ATIPP legislation, but is cognizant of the very real concerns municipal authorities have about ensuring that implementation is staged and orderly. Accordingly, the committee makes the following recommendation:

Recommendation 1

The Standing Committee on Government Operations recommends that the Department of Municipal and Community Affairs, working with the Department of Justice, develop a detailed and costed plan to guide the implementation of ATIPP for municipalities.

Additionally, the standing committee recommends that the plan identify: i) timelines for the inclusion of different categories of municipalities in the ATIPP Regulations; ii) the resources needed by each municipal government to comply with ATIPP, to ensure adequate funding for initial implementation and ongoing operational requirements; along with iii) any other significant considerations as determined through consultation on development of the plan.

The standing committee further recommends that, before being finalized, the plan be provided in draft so that input may be obtained from the appropriate standing committee, the NWT Association of Communities, and the local government administrators of the Northwest Territories.

Mr. Speaker, at this time, I will now pass the reading of the further sections to my honourable Member colleague from Hay River North. Mahsi.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
Reports Of Standing And Special Committees

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The Speaker Jackson Lafferty

Member for Hay River North.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
Reports Of Standing And Special Committees

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R.J. Simpson Hay River North

Thank you, Mr. Speaker.

Inclusion of Local Housing Organizations

Input Received

The Information and Privacy Commissioner noted the importance of bringing local housing organizations under ATIPP. Her submission notes that:

"From a privacy perspective, housing corporations collect, use and disclose significant amounts of personal information about their residents. This includes financial information, information about their employment and personal information about their family situation. It can also include sensitive information about any conditions that a resident may have. The many privacy complaints my office receives show a clear need for these corporations to live under the same privacy rules as other public sector actors."

Committee Response

From its review of the IPC's 2017-2018 Annual Report, committee is aware of an instance in which a person sought access to information held by a local housing organization. In this case, the Northwest Territories Housing Corporation directed the local housing organization to respond to the request, even though the housing organization is not bound by ATIPP. In committee's view, this suggests that the NWT Housing Corporation recognizes the need for open and transparent conduct by local housing organizations.

Committee considered bringing forward a motion to define local housing organizations as "public bodies" under the act, but recognized that this would not be consistent with the manner by which public bodies are designated under the act. To be consistent with the existing structure of the legislation, the most appropriate way to include local housing organizations under ATIPP would be to define them as public bodies by including them in Schedule A to the regulations. Accordingly, committee makes the following recommendation:

Recommendation 2

The Standing Committee on Government Operations recommends that the Minister of Justice propose, for approval by the Commissioner in Executive Council, amending the Access to Information and Protection of Privacy Regulations to include Housing Associations incorporated under the Societies Act and Housing Authorities incorporated under section 45 of the NWT Housing Corporation Act, as public bodies under the Access to Information and Protection of Privacy Act.

Powers of the Information and Privacy Commissioner

The ATIPP Act sets out the powers of the IPC with respect to both access and privacy matters. The committee gave a great deal of consideration to the scope of these powers.

Modernizing the Role of the IPC

Bill 29 proposes a number of changes to strengthen the powers of the IPC. Clause 35 expands the powers of the IPC to:

  • provide educational programs about the act and the public's rights;
  • consult with any person with expertise in any matter related to the act;
  • provide comments on the privacy implications of new technology;
  • provide comments on practices and procedures to improve access and privacy;
  • advise the heads of public bodies when their staff fail to fulfill the duty to assist applicants; and
  • inform the public of deficiencies in the system, including in the office of the IPC.

Committee supports the inclusion of the powers set out in clause 35, which will modernize the IPC's powers and align them with other provincial and territorial privacy commissioners. However, committee feels that Bill 29 could do more to strengthen the IPC's powers in the following areas.

Initiating Access and Privacy Reviews on the IPC's Own Initiative

Committee supports the proposal under Clause 28 to allow the IPC to initiate a review relating to a privacy breach on her own initiative, without receiving a complaint. Committee notes that this is something the IPC has called for in her past annual reports and is a power afforded to information and privacy commissioners in other Canadian jurisdictions and to other statutory officers with Ombud-like powers in the Northwest Territories.

This would give the IPC the authority to investigate problems that might be systemic and thus not restricted to a single complaint. The committee sees no sound policy rationale for giving the IPC this authority only for privacy matters, as proposed under clause 28, and believes that the IPC should also have the authority to investigate systemic issues relating to access matters. Consequently, committee moved motions 10(a) and (b) to ensure that the IPC has this power to initiate an investigation relating to an access matter without the prerequisite of having received a complaint. Committee also moved motion 15 to clarify that the IPC's power to initiate reviews related to privacy matters on her own initiative also includes reviews related to the correction of personal information.

Making Binding Recommendations

Input Received

From the IPC, committee heard that:

"A key shortcoming of Bill 29 is that it would continue to give public bodies the unacceptable ability to ignore adjudicated decisions by the IPC...NWT public bodies can pick and choose which decisions they will respect and which they will not. From a rule-of-law perspective, this is an unacceptably weak regime. It is also not clear why access to information -- which the Supreme Court of Canada has stated has constitutional dimensions -- does not merit better protection."

In its submission, OpenNWT noted that:

"The current process for making ATIPP requests can be difficult for the public and onerous. Currently, when a government body refuses to release a record the applicant can appeal to the Commissioner for a review. However, these reviews are not binding...and it is up to the applicant to then seek a judicial order. Considering the disparity in resources available to the government versus a private citizen or organization, this is fundamentally unfair."

Both the IPC and OpenNWT recommend that the GNWT adopt an approach found in the Newfoundland and Labrador Access to Information and Protection of Privacy Act, which was designed to enhance the enforceability of the IPC's recommendations. In this model, a public body is required to comply with the IPC's recommendations. If a public body does not wish to comply, it must apply to the court within a prescribed timeline, for a declaration that it is not required to comply with the IPC's recommendation. In its application, the public body must substantiate the reason it disagrees with the IPC's recommendations and justify how its own decision to refuse access was guided by the provisions of the act. "It should not be left to public bodies to pick and choose which access to information rights/privacy rights they will respect."

Committee Response

Currently, the recommendations made by the IPC under the ATIPP Act are not binding on the GNWT or its boards and agencies. If the IPC finds in favour of a complainant and recommends that a public body give access to a record that it has refused to release and the public body refuses to accept the recommendation, the only recourse left to the complainant is to file a notice of appeal with the Supreme Court, pursuant to section 37 of the act. The act does not provide any similar avenue of appeal for privacy complaints. Committee was in agreement that the recommendations of the IPC need to be strengthened so that they are binding upon government in some fashion.

Committee looked closely at the Newfoundland model. Committee believes that, because the GNWT is more adequately resourced to undertake legal actions, requiring the GNWT to go to court for approval to disregard the IPC's recommendations is more fair than requiring an applicant to go to court when the GNWT refuses to comply with the IPC's recommendation. Committee views this approach as consistent with the GNWT's commitment to a more open and accountable government. The Newfoundland model would even the playing field, making the access and privacy system in the Northwest Territories more accessible for those with access or privacy concerns.

The committee further believes that this approach would by its nature promote more careful and justifiable decision-making on the part of public bodies, whose heads will be more inclined to assess whether or not their decision on an access matter is likely to be viewed favourably by the courts.

In considering the scope of powers available to the IPC, committee was aware that other statutory officers, such as the NWT Human Rights Adjudication Panel, have the power to make orders having the weight of court rulings. Committee considered that providing the IPC with order-making power would be an alternative approach to the status quo and to the Newfoundland model.

Because ministerial concurrence with committee motions is required if a bill is to be amended at the committee stage, committee met with the Minister of Justice and his staff to discuss a number of potential amendments to Bill 29. Committee was surprised to learn at this meeting that the Department of Justice views the option of providing the IPC with order-making power more favourably than the Newfoundland model. The department offered the insight that the most frequent reason the GNWT refuses to comply with the IPC's recommendations is because those recommendations often lack a degree of precision necessary to allow the government to comply in a manner consistent with its mandate and operating structure. Providing the IPC with order-making power, the department suggested, would impose a level of discipline on the IPC that would result in more specific and precise direction to government. The minister indicated his willingness to concur with such an amendment on the condition that he could obtain the support of Cabinet.

Accordingly, committee moved motions 12 and 12(a) to amend Bill 29 to provide the IPC with order-making power related to access matters and motion 16 to provide the IPC with order-making power related to privacy concerns.

I would now like to hand reading of the report over to my colleague, the Member for Sahtu.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
Reports Of Standing And Special Committees

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The Speaker Jackson Lafferty

Member for Sahtu.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
Reports Of Standing And Special Committees

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Daniel McNeely Sahtu

Thank you, Mr. Speaker.

Public Interest Override

Clause 4 of Bill 29 proposes to amend the ATIPP Act to provide that, for certain records, the exemption from disclosure provided under the act will not apply where the applicant "demonstrates that a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption." This means that, where the act prohibits a record from being disclosed, the person seeking access may be able to obtain the record if they are able to demonstrate that the public's need to know is more important than the privacy considerations that would otherwise prevent the record from being disclosed.

Input Received

Committee heard from Mr. David Loukidelis, a former British Columbia Information and Privacy Commissioner, who appeared before the committee as a witness at the invitation of the NWT IPC. Mr. Loukidelis asserted that the proposal does not go far enough because it only allows the public interest to override four of the act's disclosure exemptions: advice from officials (section 14), intergovernmental relations (section 16), government's economic interests (section 17), and harm to the applicant or another individual (section 21). In contrast, Mr. Loukidelis notes, the public interest prevails over all of the secrecy provisions contained in the ATIPP acts of Alberta, British Columbia, Prince Edward Island, and New Brunswick.

"The bar is set too high -- the public interest would only win out over secrecy where there is a 'compelling' public interest that 'clearly outweighs the purpose of the exemption.' Experience with similar language in Ontario shows that the bar is so high that the override will effectively be illusory."

Both Mr. Loukidelis and the IPC additionally point out that clause 4 of Bill 29 only applies in instances where someone has made a request for a record. They argue that there should be a positive duty on government to disclose information that is in the public interest. As the NWT IPC noted:

"Bill 29 should be amended to provide that the public body is required to disclose to the public, an affected group of people or an applicant, as promptly as practicable, information about a risk of serious harm to the environment or to the health or safety of the public or a group of people. This duty should apply, to be clear, regardless of whether an access request has been made."

Finally, both the IPC and Mr. Loukidelis express concern that clause 4 of Bill 29 places the onus on a member of the public to demonstrate a compelling public interest "from a position of complete or near complete ignorance." This observation served to confirm committee's view that this places an unreasonable burden of proof on the applicant.

Committee Response

In response to these concerns, committee moved motion 2, which places a positive duty on government to disclose to the public, without delay, information about a risk of significant harm to the environment or to the health or safety of the public or information that, for any other reason, should be disclosed because it is clearly in the public interest to do so. This public interest override applies throughout the act, not just to the four disclosure exemptions provided for in clause 4 of the bill. It also removes the requirement for a member of the public to demonstrate a compelling public interest and, instead, puts the onus on government to ensure that, regardless of protections provided under ATIPP, information in the public interest is properly disclosed.

Labour Relations Information

Clause 17 of Bill 29 proposes to add a new section 24.1 to the act, that would require a public body to refuse to disclose to an applicant "labour relations information, the disclosure of which could reasonably be expected to reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations matter."

Input Received

As pointed out by the IPC in her submission, "this would be a mandatory exemption, and a public body would not be permitted to waive its protection." She goes on to express the view that "this is a potentially vast black hole in the act. For one thing, the terms 'labour relations information' and 'labour relations matter' are not defined. They could be very broad in their scope."

The IPC also expresses her concern with the proposal to "withhold even the final report of a labour arbitrator or similar decision-maker," noting that, with respect to arbitration decisions, "there is no good reason for an access to information law to require them to be secret." She argues that "these decisions are an important part of our law and the act should not require them to remain secret when an access request is made for an unpublished decision."

Committee Response

Committee agrees that the exemption from disclosure of information harmful to the GNWT's labour relations interests is too broad as set out in clause 17 of Bill 29. Committee discussed with Justice the possibility of adding a definition to the act and was persuaded by the department's concern that such a definition this might inadvertently capture types of information that should not be exempted or, conversely, fail to address types of information that should. Committee also considered an approach that would narrow the scope of the provision by inserting a "harms test." The effect of this would be to require a public body to give consideration to the nature of the information being requested, to determine if it "could reasonably be expected to (i) harm the competitive position of the GNWT as an employer; (ii) interfere with the negotiating position of the public body as an employer, or (iii) result in financial loss or gain to the public body as an employer."

Unfortunately, an amendment to clause 17 of the bill could not be finalized in time for this provision to be amended at the committee stage. Had such an amendment been completed, it would have been moved as motion 7, which is why readers of this report will not find such a motion in Appendix 1 to this report.

Committee has enjoyed a positive and extremely collaborative relationship with the Minister of Justice and his staff on the review of Bill 29, and work to resolve the committee's concern is still underway as this report is being read into the record. Committee has every confidence that a solution can be reached that is satisfactory to both the Minister and to committee and that will result in a further amendment to this bill on the floor of the House.

Mr. Speaker, I pass the further reading on to the honourable Member for Nunakput.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
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The Speaker Jackson Lafferty

Masi. Member for Nunakput.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
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Herbert Nakimayak Nunakput

Thank you, Mr. Speaker. I checked my papers, and I do not have any duplicates, so you only get all 29 pages in this report.

Obligations of Public Bodies

The ATIPP Act places a number of obligations on public bodies. Bill 29 proposes to amend certain of these obligations.

Response to the IPC's Access-Related Recommendations

As set out in Bill 29, clause 31 proposes to require a public body to provide the IPC with a status report on its implementation of the IPC's privacy-related recommendations.

The committee originally supported this proposal because it is something that has been long sought by the IPC. However, committee could see no sound policy reason for this obligation to exist only with respect to privacy-related matters. Committee considered moving a motion which proposed to also place this obligation on public bodies with respect to access-related recommendations by the IPC. However, the subsequent decision to provide the IPC with order-making power, for both access and privacy matters, as set out in motions 12 and 16, supplanted the need for either clause 31 of the bill or an amendment requiring public bodies to report on the status of access-related recommendations.

Motions 12 and 16 require a public body to comply with an order of the IPC within 20 or 40 business days, respectively. Because the IPC's orders become mandatory under these amendments, the IPC will no longer be left wondering to what extent recommendations accepted by a public body are being implemented.

Records That May Be Disclosed Without an Access Request

Section 72 of the ATIPP Act gives public bodies discretionary authority to identify categories of records that do not contain personal information and can, therefore, be made available to the public without the need for a formal access request under the act.

Clause 37 of the bill proposes to make this requirement mandatory, rather than optional, for public bodies. Committee supports this proposal, but wants to ensure that the public has a way of knowing which categories of records may be requested without an access request.

Committee therefore moved Motion 19, which obligates public bodies not only to develop these categories of records, but also to publish them, so that people seeking information held by the government will know which records they may readily access without need to make a formal request under the act.

Privacy Impact Assessments

Input Received

The IPC has spoken to the committee, many times, about the importance of "privacy by design," which is the notion that whenever government is developing a new initiative, it should give consideration, in the earliest planning stages, to the initiative's impacts on the privacy of individuals. One of the ways to achieve this is through the use of a privacy impact assessment (PIA), which describes how individuals, whose personal information will be collected, used or disclosed, would be affected by the initiative.

Committee heard from the IPC on this subject, who said:

"PIAs help ensure that initiatives proceed only if there are no compliance concerns that cannot be mitigated. They enable what is known as privacy by design, with privacy compliance being designed into the initiative at the outset. PIAs also enable public bodies to assess whether, even if an initiative is legally compliant, it is not good policy from a privacy perspective. A PIA is an important and highly-desirable business risk assessment tool that should be mandatory."

Committee sees the value in privacy impact assessments, noting that such assessments are required under the Health Information Act for any proposed change to an information system or communication technology relating to the collection, use or disclosure of personal health information.

Committee Response

Committee was persuaded to seek an amendment to Bill 29 requiring public bodies to conduct privacy impact assessments, not only by the IPC's evidence, but out of consideration for impacts related to "common or integrated programs or services," a concept introduced in Bill 29.

One of the key features of the ATIPP Act is that it places an obligation on public bodies to limit their collection of personal information to only that which is needed to deliver a given program or service. It also requires that each public body must disclose to an individual the reasons for which their personal information is being collected. As a result, public bodies are not authorized to share the personal information they have collected, such that it can be used for purposes other than those for which it was first collected. Bill 29 proposes to change this with the introduction of the concept of a "common or integrated program or service."

A common or integrated program or service is one that provides one or more services through a public body working collaboratively with one or more other public bodies. The rationale for this approach is to break down the silos that tend to occur within government, so that different government departments or agencies may collaborate to deliver programs and services.

While this may be desirable from a program-delivery perspective, it creates challenges for collaborating offices, as they are currently prevented under the act from sharing with one another the personal information they have collected from their clients. As a result, clause 26 of Bill 29 proposes to amend the act to allow public bodies to share personal information they have individually collected for the purpose of collaboratively delivering a common or integrated program or service. Committee sees privacy impact assessments as vitally important in this context.

Mr. Speaker, as a result, committee moved Motion 13 to amend Bill 29. This amendment requires public bodies to develop privacy impact assessments for any proposed enactment, system, project, program or service, including common or integrated programs and services, involving the collection, use or disclosure of personal information. These PIAs must be submitted to the head of the public body for review and comment. It further requires that privacy impact assessments done for common or integrated programs or services be submitted to the IPC for her review and comment. Finally, this motion also requires the head of a public body to notify the IPC at an early stage, when developing common or integrated programs or services.

Thank you, Mr. Speaker. I now pass it on to the Member for Hay River North.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
Reports Of Standing And Special Committees

Page 5617

The Speaker Jackson Lafferty

Masi. Member for Hay River North.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
Reports Of Standing And Special Committees

Page 5617

R.J. Simpson Hay River North

Thank you, Mr. Speaker.

Mandatory Breach Notification

Input Received

The Northwest Territories Health Information Act, which came into force on October 1, 2015, places an obligation on the custodians of health information to advise affected individuals if the privacy of their health information is breached. Having had experience with this legislation, the IPC has recommended that public bodies under ATIPP should be required to provide the same breach notification for personal information under their control. She says,

"The duty to notify individuals of a breach that meets a statutorily-defined risk of harm is necessary for several reasons. First, it enables those affected to protect themselves from identity theft or fraud, and in some cases from personal harm. Second, the duty to notify affected individuals, and the public, serves as an important incentive for governments to take privacy seriously and avoid breaches in the first place. Third, a breach notification requirement would require public bodies to investigate the details of breaches, notably how they happened, and thus give them a solid information base for steps to prevent similar breaches in the future."

OpenNWT also recommended mandatory breach notification for ATIPP, stating that "Based on the large number of privacy breaches in the NWT it is important that our residents are notified individually."

Committee Response

Committee was persuaded of the value of amending the act to include a mandatory breach notification. To determine how to achieve this, committee looked at the relevant provisions of the NWT's Health Information Act and Nunavut's ATIPP Act, Division E, Data Breach Notification. Committee moved a lengthy Motion 17, to incorporate into Bill 29 a section, largely modeled on the Nunavut example, which provides a definition of "harm" and sets out a process governing public bodies with respect to data breach notifications. In addition, committee moved Motion 20, to provide the Minister with the authority, under section 73 of the act, to make regulations respecting the requirements to be fulfilled by public bodies in the event of a data breach

Protecting the Privacy of Individuals Making Access Requests

Input Received

The IPC has recommended that the identity of access requesters be protected under the act. She notes that "although it is convention not to disclose the identity of access requesters within a public body, there is no legal bar to doing so."

Committee Response

Committee believes that people seeking access to government records should be afforded a right to privacy, especially in a jurisdiction such as ours, where the population is small and many members of the public and the public service are known to one another.

Committee moved motion 3, which amends Bill 29 to provide that the identity of a person requesting access to information constitutes personal information which should be known only to the public body's ATIPP coordinator. It further provides that the identity of an access requester may only be disclosed by the ATIPP coordinator, to other employees in a public body, to the extent required in order to fulfill the access request.

Annual Reporting to the Responsible Minister

Consistent with the GNWT's commitment to openness and transparency, committee sees the value of having public bodies report annually on activities they have undertaken as required by ATIPP. Committee moved motion 23, which requires public bodies to submit a report to the responsible Minister, within 60 days of the fiscal year end, detailing the:

  • Number of requests received;
  • Time taken to process the requests;
  • Number of requests that were denied and the exceptions that were relied upon by the public body, in determining the denial;
  • Fees collected;
  • Justification relied upon for any extensions of time; and
  • Number of privacy impact assessments the public body has conducted in the fiscal year.

Obligations of the Responsible Minister

Annual Reporting to the Legislative Assembly

Motion 23, which requires annual reporting on ATIPP by public bodies, also requires that the Responsible Minister compile the reports submitted by the public bodies into an annual report, to be tabled within 60 business days of receiving the year-end information from the public bodies or, if the Legislative Assembly is not sitting at that time, at the next sitting of the Assembly. This will ensure that the information produced by public bodies as part of their year-end reporting is made available to the public.

Statutory Review of the Act

As noted at the outset of this report, the Northwest Territories' ATIPP legislation is just a few years shy of being a quarter of a century old. While it has been amended from time to time, the legislation has not, until now, been subjected to a comprehensive review.

ATIPP legislation governs the collection, use and disclosure of personal information. Processes used for collecting, exchanging, cataloguing and distributing personal information are intrinsically linked with technological changes. To put the age of the current ATIPP Act into perspective with respect to technological advancement, consider that in the same year it went into force the DVD was launched, smartphones were in their infancy, and there were roughly 45 million Internet users, none of whom had yet heard of Google, as compared with today's 1.4 billion Internet users.

Given the impact of changing technology on ATIPP, committee sees a greater-than-average need to ensure that the legislation is kept current. Clause 39 of Bill 29 achieves this by proposing to amend the act to include a requirement that the responsible Minister undertake a review of the legislation every seven years.

Based on past reviews of the Official Languages Act, committee is aware that mandated reviews of legislation occurring at arbitrary intervals, be it every five years, seven years, or whatever the case may be, do not always lend themselves to producing amended legislation. One reason for this is that, if the date for a review happens to coincide with the final year of an Assembly, there will not be enough time remaining to complete any recommended legislative changes arising from a review.

Committee prefers to see the statutory requirement to review legislation be tied to the lifespan of a sitting assembly. In this way, the review period can be synched to coincide with the four year term of an assembly, allowing enough time for any required changes to the legislation to make their way through the legislative process.

Committee moved motion 21 to amend clause 39 of the bill to require the Minister to carry out the review within 18 months of the start of the 20th Legislative Assembly and within 18 months of every second assembly thereafter. This will result in ongoing reviews of the act at eight-year intervals.

Committee debated whether or not to also amend the proposal in clause 39 of the bill to require that the review be done by a committee of the Legislative Assembly rather than being done by the Minister, as is the case with the Official Languages Act. Regardless of who does the review, it will ultimately be up to the responsible Minister to sponsor amending legislation to implement the findings of the review. On this basis, committee was satisfied with leaving the responsibility for the review in the hands of the Minister, providing that the results of the review be tabled in the Legislative Assembly for the consideration of Members. Committee moved motion 22 to provide for this reporting requirement.

Time Limits

As noted at the start of this report, Bill 29 proposes to revise time limits in the act by restating them as business days rather than calendar days; shortening some turn-around times; and adding time limits for certain actions required under the act that did not previously have them. Committee is proposing changes to a number of the time limits set out in Bill 29.

Time Limit for IPC to Complete Reviews

Input Received

Presently, the ATIPP Act requires the IPC to complete her reviews on access and privacy matters within 180 calendar days, or approximately six months. Clauses 22 and 29 of Bill 29 propose to shorten this timeframe to 60 business days, which is approximately three months. It is perhaps not surprising that the IPC would not be in favour of this amendment. Noting her deep concern, she asserts that the:

"Imposition of such a severe constraint without my office having more resources would either cause my office to fail to meet that standard or, in order to do so, to divert scarce resources from other important tasks, such as privacy complaints under the Health Information Act. Neither outcome is desirable."

She goes on to argue for the complete elimination of her time limit, pointing out that her office's review functions differ from those of other public bodies. Public bodies act on the basis of their own records and the contextual information they receive. In contrast, the IPC is entirely dependent upon public bodies to be timely in their responses to the IPC's requests for information when processing an applicant's request for a review.

Committee Response

The committee considered this input along with the testimony from Department of Justice representatives who pointed out that, in their review of the ATIPP Act, they heard from the public that the entire process is too lengthy.

Committee recognizes that the public should be able to have access to a process that is as expedient as possible. At the same time, committee notes that the cut to the IPC's time limit proposed in Bill 29 is the most severe cut proposed to any of the timelines contained in the act, while her office has far fewer resources than most public bodies. Committee is of the view that a reduction of that size would have a negative impact on the IPC's ability to complete thorough reviews. Committee moved motions 11(a) and (b), which set the IPC's time limit for completing access and privacy reviews respectively at 90 calendar days, which is approximately four and a half months. Committee believes that this will expedite the process for the public while still allowing the IPC adequate time to complete her work.

Mr. Speaker, I would like to hand the reading of the report over to the Member for Kam Lake.

Committee Report 16-18(3): Report on the Review of Bill 29: An Act to Amend the Access to Information and Protection of Privacy Act
Reports Of Standing And Special Committees

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The Speaker Jackson Lafferty

Masi. Member for Kam Lake.