Info-privacy guru says “leadership is waning” at Nunavut government

Elaine Keenan Bengts, Nunavut’s information and privacy commissioner, says in her 2014-15 annual report that some departments sometimes mishandle, or improperly deny, information and privacy requests from Nunavut residents. (FILE PHOTO)

In her 2014-15 annual report, Nunavut’s veteran information and privacy commissioner, Elaine Keenan Bengts, warns members of the Legislative Assembly of a troubling trend.

“I have, in the last couple of years, noticed that leadership is waning… to the extent that I felt compelled to comment on the very negative attitude of one public body,” Keenan Bengts said in her report, tabled recently in the Nunavut Assembly in Iqaluit.

That public body is Nunavut’s department of Economic Development and Transportation.

Keenan Bengts became Nunavut’s privacy commissioner in 2000 on a part-time basis. Her position was expanded to a full-time job, shared with the Government of the Northwest Territories, in 2014. She’s an officer of the Nunavut legislature, and reports directly to MLAs.

In her annual report, Keenan Bengts is highly critical of the ED&T department.

“While the attitude demonstrated by this public body is not pervasive within the public bodies I deal with in Nunavut, it is troubling and it needs to be addressed before that attitude becomes the norm,” wrote Keenan Bengts.

In the fiscal year beginning April 1, 2014, ED&T responded to an information request from a citizen under the Access to Information and Protection of Privacy Act, or ATIPP.

But the citizen was not content with the department’s response, and asked the commissioner to review the file.

As a result, the commissioner made some “pointed comments… about the attitude of the department toward ATIPP requests as indicated by the content and tone of its submissions to her office.”

Those submissions had referred to “obligations” on members of the public making ATIPP requests, Keenan Bengts wrote.

But those obligations don’t exist, she said.

“The Act, in fact, gives the public the right to make as many and as broadly based requests for records as they wish. The only obligations imposed in the Act are on public bodies,” the commissioner wrote.

Keenan Bengts’ 34-page report includes 17 reviews of ATIPP requests handled by the GN between 2014 and 2015, some of which reveal alarming information.

For example, the Qulliq Energy Corp. refused a request for information contained on an internal audit report, on the grounds that disclosing the information could compromise an RCMP investigation related to that audit.

The finance department, which is responsible for the power utility, said “the matter had been turned over to the RCMP for investigation of possible criminal activity,” Keenan Bengts said in her report.

But the department did not demonstrate a “reasonable possibility” that releasing the information would prejudice the investigation, the commissioner said.

“It is not enough simply to say that the record is in the hands of the RCMP and is therefore part of a law enforcement matter. There must be some evidence that the disclosure will prejudice that law enforcement matter,” Keenan Bengts commented.

As a result, the commissioner overturned the finance department’s decision and recommended disclosing “significant portions” of the requested information.

Four other requests for review made to the commissioner related to alleged unfair hiring practices within the finance department.

In reviewing one request, filed by the successful candidate of a job competition, Keenan Bengts discovered that information relating to the health and other personal circumstances of the candidate had been circulated by the deputy minister of the hiring process.

In another review, requested by an unsuccessful job applicant who believed that he had been “branded as an ‘undesirable employee’,” the commissioner found the department’s usual practice of collecting information posed a conflict of interest.

That’s because the department asked those named in the information request to search their own records for any communications that related to the information request.

“It was inherently a conflict of interest to ask one individual to identify and provide responsive records with respect to a matter involving that person in a workplace dispute,” Keenan Bengts wrote.

Despite these negative reviews, however, Keenan Bengts said her office “came of age” in 2014-15 because her new full-time status allows her to catch up on a backlog of issues and to get some projects off the ground.

That includes laying the “groundwork” for modernizing the 20-year-old act, which has fallen behind current technology.

“The ways in which we collect, use, manipulate and store information today looks nothing like what it did 20 years ago… It is time for Nunavut to do a full review of the ATIPP Act with a view to updating and improving the legislation,” Bengts said.

The GN appears to have already started to review at least some of the commissioner’s recommendations from her 2014-15 annual report.

A report tabled in the legislature on Nov. 3 by the minister of Executive and Intergovernmental Affairs, Premier Peter Taptuna, said draft amendments to the ATIPP regulations have already been developed.

“As of March 31, 2015, the draft amendments were close to finalization,” the 2014-15 annual report on the administration of the ATIPP Act reads.

The same report says a total of 140 ATIPP requests were made across all GN departments in that fiscal year, a 24 per cent increase from the previous year.

Most of the requests for information pertained to personal information, and were filled within 30 days after receiving the request.

But about 17 per cent of the requests were not filled within 60 days — the maximum amount of “reasonable time,” including extensions, the government has to respond, according to Keenan Bengts’ annual report.