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.