No clear path for access to information from city

by Sidney Cohen - April 3, 2018

To residents seeking public information from a community government who are turned away or ignored, you’re likely out of luck.

Sidney Cohen/NNSL photo
Sheila Bassi-Kellett, the city’s senior administrative officer, says applying territorial access to information laws to the city would have “major implications for us, from a resourcing point of view.”
Feb. 5, 2018

“You have no recourse,” says Elaine Keenan Bengts, the information and privacy commissioner of the Northwest Territories.

“There is nothing that says you have a right to information held by the city or a municipality in the Northwest Territories.”

This is because communities are not bound by the Access to Information and Protection of Privacy (ATIPP) Act, the territorial law that gives people a legal right to access information held by the GNWT, including personal information about themselves.

The ATIPP Act also spells out how the government may use residents’ personal information, and allows for independent oversight by the information and privacy commissioner.

People with concerns over use of their personal information by the territorial government, or who can’t get information from GNWT, can turn to Keenan Bengts.

At the municipal level however, there is no independent watchdog whose job it is to look into and resolve issues related to privacy and access to information.

The NWT is one of just four jurisdictions in Canada where municipalities are not covered by provincial or territorial laws that protect privacy and ensure transparency.

The others are the Yukon, Nunavut and Prince Edward Island.

Keenan Bengts has been the NWT’s information and privacy commissioner since 1997.

In nearly every one of her annual reports from the last 21 years, Keenan Bengts has called on the GNWT to bring municipalities into the ATIPP Act.

She acknowledged that small communities may not have the capacity right now to fulfill ATIPP protocols.

However, she said, “I’ve always thought that it’s important for the city of Yellowknife to have ATIPP legislation, or at least, at the very least, detailed ATIPP policies, or a bylaw.”

“We’ve seen the absolute failure of privacy at the city (of Yellowknife) in the last few months with the – it sounds like – stealing of emails… There’s got to be a lot in there in terms of personal information,” Keenan Bengts said in a recent interview.

The commissioner was referring to the hundreds of city emails provided by a source to Yellowknifer and other media outlets in the fall. These emails contained details about the handling of a 2014 complaint made by a former bylaw officer alleging harassment and bullying at the Municipal Enforcement Division.

The city has since launched an independent inquiry into 2014 allegations of misconduct at MED.

“ATIPP legislation requires public bodies to maintain security over personal information,” said Kennan Bengts. “Personnel issues should not be played out in the public eye, and that’s exactly what’s happened because of the initial breach.”

One of Keenan Bengts’s roles as NWT privacy commissioner is to review complaints of privacy violations at the territorial level, and make recommendations for resolving them.

The NWT’s ATIPP Act is currently under review and a bill is expected to be tabled in the legislature this fall.

It is uncertain however, when, if ever, municipalities will be brought under ATIPP legislation.

The Department of Justice says it must first consult with the communities.

Martin Goldney, the deputy minister of Justice, stated in a March. 28 email the GNWT will work with community governments to assess the resources and training needed for “orientation to the ATIPP Act.”

In the meantime, stated Goldney, residents with complaints related to privacy or access to information can take those up with municipal officials or their elected representatives.

“Municipalities are democratically accountable to the residents they serve, and as such should be expected to manage information, particularly personal information, safely and appropriately,” stated Goldney in a follow-up email.

Access to information legislation, he wrote, is “intended to be used as a last resort.”

Mayor Mark Heyck was away and unavailable for an interview.

Coun. Adrian Bell, the deputy mayor, said he would “absolutely, 100 per cent” support the application of ATIPP rules to Yellowknife.

“We’re a publicly funded municipality and taxpayers have a right to know what we’re up to,” he said.

Bell often gets requests for information from residents, which he passes on to city administration – “but it shouldn’t have to be done through a politician,” he said.

“Yellowknife is a big enough city with a big enough administrative operation that we could accommodate ATIPP requests.”

Sheila Bassi-Kellett, Yellowknife’s senior administrative officer, said the city would not resist ATIPP legislation, but enforcing the act in Yellowknife would place significant strain on municipal resources.

The NWT’s Cities, Towns and Villages (CTV) Act includes provisions for privacy and transparency.

The CTV act states that bylaws and resolutions must be passed in public, and it sets out circumstances under which council may hold closed-door meetings.

For example, council may go in-camera to discuss personnel matters, current or imminent legal proceedings, or information that could compromise public security.

A municipality’s financial statements, budgets and any auditor’s reports must also be public under the act.

Bassi-Kellett recognized that information may be public, but still difficult to access or interpret.

She pointed to public meetings on issues like the sewage spill in Kam Lake, open budget deliberations and online surveys as examples of open access at city hall.

“Are we doing enough? I don’t think it’s ever enough,” said Bassi-Kellett. “We need to do more.”

The federal Personal Information Protection and Electronic Documents Act (PIPEDA) dictates how businesses must handle the personal information of their employees.

In the territories, this act also applies to the personal information of municipal employees.

The Northwest Territories Association of Communities says most communities have neither the systems nor the staff to deliver an effective ATIPP program.

But the information and privacy commissioner believes concerns about cost should not inhibit ATIPP laws from applying to the communities.

“There’s a cost to democracy, right?” said Keenan Bengts.

Since March 20, Yellowknifer has made repeated requests for an interview with Louis Sebert, the minister responsible for Public Engagement and Transparency, to discuss the review of NWT’s ATIPP legislation.

The minister agreed to an interview after the deadline for Wednesday’s print edition.


SAO and privacy commissioner differ on internal complaints

The city will not disclose the total number of municipal employees who have made complaints about other city staff since a whistleblower policy came into effect.

At the end of 2017, city council approved a whistleblower policy that allows city employees to file anonymous complaints about misconduct, unethical or illegal behaviour inside the municipal government. If they feel uncomfortable about reporting to a superior, employees can choose to do so directly to the city’s senior administrative officer.

As of March 8, two complaints had been made under the whistleblower policy.

But Sheila Bassi-Kellett, the city’s SAO, says she is “not comfortable” sharing the number of city staff who have made complaints to directly to her.

“I’m loathe to give specific information out because it is about the relationship that we have internally as an employer,” said Bassi-Kellet on Friday.

However Elaine Keenan Bengts, NWT’s information and privacy commissioner, said “in the GNWT world, that information would be available.”