Yukon Information and Privacy Commissioner
Procedures for Managing Complaints and Requests for Review
Subsection 42 (b) of the ATIPP Act authorizes the Information and Privacy Commissioner (IPC) to investigate any complaint made by the public about the administration of the ATIPP Act by a public body.
The IPC has broad investigation powers under this subsection but does not have the ability to make findings of fact and law, i.e. adjudicative authority to decide how the law is to be interpreted and applied. In addition, there is no right of appeal under this subsection. The IPC does, however, publish all investigation reports and responses to recommendations on the Office’s website.
Requests for Review
Section 48 of the ATIPP Act authorizes the IPC to conduct a review upon receiving a request for review from a person (or a third party in the case of the last bullet) for any of the following:
- a refusal by a public body to grant access to a record,
- a decision by the public body to separate or obliterate information from a record,
- a decision by the records manager to declare a request for access to a record abandoned,
- a decision by the records manager to not waive a part or all of a fee for processing an access request,
- a refusal by a public body to correct information or annotate a record,
- a complaint that the public body improperly collected, used or disclosed personal information, or
- a decision by a public body to release a third party’s personal or business information.
The IPC has broad investigative powers under section 48 in conducting reviews and may conduct an inquiry as part of the review process. The IPC has adjudicative authority when conducting an inquiry to interpret the law and decide whether a public body has complied with the law. Upon completing an inquiry, the IPC may make certain recommendations to remedy non-compliance. After an inquiry is complete, the person who requested the review can, in certain circumstances, appeal a decision associated with a review to the Yukon Supreme Court.
The ATIPP Act authorizes the IPC to try and settle a complaint or request for review.
In order for our Office to effectively manage complaints our office has two teams: Informal Case Resolution Team and Investigation and Compliance Review Team. These two teams utilize three file management streams: intake, informal case resolution, and investigation.
Informal Case Resolution (ICR)
Written complaints received under subsection 42 (b) of the ATIPP Act will be managed through Informal Case Resolution (ICR) unless a decision is made to move to formal Investigation (see Investigation below).
Our goal is to resolve Requests for Reviews or Complaints through our ICR process within 90 days of receipt.
Requests for review will be managed through Informal Case Resolution process though may proceed directly to formal Inquiry (see Inquiry below).
The procedure for managing a complaint or request for review through ICR follows.
- Contact – An Investigator from the ICR Team contacts the pre-designated contact for the public body. If a request for review goes through the ICR process, the head of the public body will be copied on correspondence provided to the contact to initiate the review.
- ICR - The Investigator and the contact (or designate) enter into discussions about the complaint or request for review in an attempt to reach a settlement.
- Settlement - If settlement is reached, the Investigator sets out the terms in a letter and provides it to the parties with a request to confirm agreement. If agreed to, the Investigator sends a letter to the parties confirming agreement.
- Follow-up - The Investigator follows up as necessary to ensure settlement terms are met.
- Non-settlement of a Complaint - If settlement does not occur, the Investigator forwards the file to the IPC to decide if formal investigation is necessary.
- Non-settlement of a Request for Review - If settlement does not occur, the Investigator may send a letter informing the parties of the outcome and inform them they can request the IPC conduct an inquiry. A request for inquiry does not guarantee an inquiry will occur; it is up to the IPC to decide whether to conduct an inquiry.
- Publication – A case summary may be published for complaints or requests for review settled through ICR if it is determined there is educational value. Public bodies and complainants or requestors are not named in case summaries. Statistics about ICRs will be published in the Annual Report of the IPC and examples may be cited.
A written complaint received under subsection 42 (b) of the ATIPP Act will proceed directly to formal investigation where it is determined that investigation of the complaint is necessary to properly address the complaint. Factors that may be considered in making this determination follow.
Our goal is to complete a complaint investigation within 12 months.
- Serious or complex - A complaint does not lend itself to early resolution due to the seriousness of the complaint or complexity, such as a systemic complaint involving multiple complainants.
- Resolution unsuccessful - The complaint could not be resolved through ICR in a timely manner or at all.
- Education purposes - There is a need to raise awareness through publication of an investigation report or case summary about the requirements of the ATIPP Act.
The procedure for managing an investigation of a complaint follows.
- Contact – Opening correspondence is sent to the public body to notify them about the investigation and request a contact for the investigation.
- Investigation – An Investigator from the Investigation and Compliance Review Team gathers relevant evidence, analyzes the evidence, and draws conclusions about non-compliance with the ATIPP Act.
- Report – A preliminary investigation report is prepared.
- Consultation - The public body is provided with the preliminary investigation report to verify facts, consider the recommendations, and provide any comments in relation to the preliminary report for consideration by the IPC.
- Finalization – After reviewing the response received from the public body, the IPC finalizes the report and recommendations and sends the report to the public body. The IPC requests the public body provide its decision by a specified date about whether it will accept the recommendations.
- Recommendations Acceptance – If the public body accepts the recommendations, the IPC follows up to ensure the public body has given effect to the recommendations.
- Recommendations Non-Acceptance - The decision by the public body to accept the recommendations or not is published on the IPC’s website.
- Complainant informed – A final investigation report is sent to the Parties along with the public body’s decision in respect of the recommendations.
- Publication – Investigation reports are published on the IPC’s website along with the decision by the public body to accept any recommendations made. A summary may also appear in the IPC’s Annual Report. Statistics associated with recommendations made in investigation reports will be published in the IPC’s Annual Report.
Under the ATIPP Act, the IPC has discretion about whether to conduct an Inquiry. A matter under review may proceed to inquiry in the following circumstances.
- Resolution unsuccessful - A request for review cannot be resolved through ECR, mediation or investigation and the IPC decides an inquiry is necessary in order to address the matter under review.
- Precedent required - The IPC decides upon receiving the request for review that it will proceed directly to inquiry because there is a need to clarify the interpretation of a provision of the ATIPP Act at issue in the matter under review or for any other reason.
The procedure for managing an inquiry follows.
- Decision to conduct an inquiry - The IPC exercises her discretion to conduct an inquiry.
- Decision not to conduct an inquiry – Upon receipt of a request for inquiry, the IPC may decide not to conduct an inquiry. There are a number of factors the IPC will consider in making this decision. If the IPC decides not to conduct an inquiry the parties will be notified of the decision and reasons for the decision.
- Contact - The registrar prepares a notice of inquiry to the parties and sends it along with instructions for submissions. The registrar works with the parties to finalize and circulate the submissions and any replies.
- Evidence to IPC - Once the submissions and replies are received, the registrar provides all evidence relevant to the inquiry to the IPC.
- Inquiry - The IPC analyses the evidence and relevant law and makes findings of fact and law arising in the course of the inquiry.
- Report – The IPC prepares a report containing findings, any recommendations to remedy a finding of non-compliance with the ATIPP Act, and reasons for the findings and recommendations. In the report, the IPC also advises the public body of its requirement to give written notice of its decision about whether it will follow the recommendations and inform the parties of their right to appeal.
- Parties informed – The registrar distributes the report to the parties involved in the inquiry.
- Follow-up – If recommendations are included in the report, the IPC receives the public body’s decision about whether it will follow the recommendations within the time period required. If the public body does not respond in time, the IPC will notify the parties that the public body is deemed to have refused to follow the recommendations.
- Publication - The IPC publishes the inquiry report on the IPC’s website and identifies whether the public body accepted the recommendations. Statistics will be published.
An inquiry is an adjudicative process and, therefore, completion of a report may take a significant amount of time.
- Is the Information and Privacy Commissioner part of government?
No, the Information and Privacy Commissioner (IPC) is an independent officer of the Yukon Legislative Assembly and is, therefore, not part of the Yukon Government.
In Yukon, the IPC is the same person as the Ombudsman and the Public Interest Disclosure Commissioner. For more information about these roles, our website at: http://www.ombudsman.yk.ca.
The IPC is responsible for monitoring compliance with HIPMA and the Access to Information and Protection of Privacy Act (ATIPP).
ATIPP applies to Yukon public bodies, such as Yukon Government departments. HIPMA applies to custodians (see ‘What is a custodian?’).
The IPC has a number of responsibilities under these Acts and has broad authority to investigate complaints made, including the power to compel production of records and witnesses. Under HIPMA, the IPC has adjudicative authority. This means she can make findings of fact and law that are binding on custodians. At the conclusion of an adjudication, called a ‘consideration’ under HIPMA, she has the authority to recommend any remedy that she determines appropriate.
- When does the IPC hold inquiries?
Most requests for review initially proceed to mediation to try to settle the issues for review. Where a request for review is not completely settled during mediation, a party can ask the IPC to conduct an inquiry. The IPC has discretion to decide whether to proceed to inquiry.
- What happens in an inquiry?
An inquiry is the final stage in the request for review process. An inquiry is a formal adjudicative process conducted by the IPC. The parties to an inquiry are entitled to make representations * to the IPC about the issues identified for inquiry. In most inquiries, the representations are made in writing and the parties do not appear before the IPC.
If the IPC decides to proceed to inquiry, a notice of inquiry is issued to the parties. The notice of inquiry outlines the next steps in the inquiry. The notice of inquiry will confirm:
- the parties to the inquiry,
- the sections of the ATIPP Act that will be considered,
- the issues for inquiry,
- the timeline for notifying the IPC of any preliminary objections to the inquiry,
- the schedule for delivery and exchange of initial and reply submissions from the parties, and
- a deadline for requesting the IPC’s approval for “in camera”* submission material.
At the inquiry, the IPC considers the Fact Report prepared by the mediator, the representations received from the parties, reviews any records in dispute, and decides how each issue should be resolved and makes her recommendation(s) *. The IPC issues a written report to the parties setting out her findings, recommendation(s) and reasons for the findings and recommendation(s). Some of the things the IPC can recommend are:
- the release of some or all of the information in a record
- the modification of a fee waiver
- the correction of personal information