Yukon Information and Privacy Commissioner
Frequently Asked Questions
- 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.
The IPC is responsible for monitoring compliance with the Health Information Privacy and Management Act (HIPMA) and the Access to Information and Protection of Privacy Act (ATIPP).
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 ATIPP and HIPMA, the IPC also has adjudicative authority which means her office can make findings of fact and law that are binding on public bodies and custodians subject to the Acts.
- When does the IPC hold an Adjudication under ATIPP?
Most complaints initially proceed to Informal Case Resolution (ICR) to try to settle the issues for review. Where a complaint is not completely settled during informal case resolution, a party can ask the IPC to conduct an adjudication. The IPC has discretion to decide whether to proceed to adjudication.
The IPC may initiate her own investigation, known as an own motion investigation, on a decision or matter that the commissioner reasonably believes could be the subject of a complaint.
- What happens in an adjudication?
An adjudication is the final stage in a complaint investigation and is a formal process conducted by the IPC. The parties to an adjudication are entitled to make representations to the IPC about the issues identified for adjudication. 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 adjudication, a notice of adjudication is issued to the parties. The notice of adjudication outlines the next steps in the adjudication. The notice of adjudication will confirm:
- the parties to the adjudication,
- the sections of the ATIPP Act that will be considered,
- the issues for adjudication,
- the timeline for notifying the IPC of any preliminary objections to the adjudication,
- 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 adjudication, the IPC considers the Fact Report prepared by the Investigation and Compliance Review Officer from the Informal Case Resolution (ICR) team, 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
- When does an adjudication conclude?
An adjudication concludes when the IPC issues her written report. If the written report includes recommendation(s), the public body * has 30 days to decide whether it will follow the IPC’s recommendation(s) and give notice of that decision to the IPC and any other person given the report (i.e. the applicant and third parties, if applicable). If the public body does not give notice of its decision within the required time, the public body is deemed to have refused to follow any recommendation(s). If the public body decides not to follow the IPC’s recommendation(s), the public body must, in writing, inform the persons who received the IPC’s report of their right to appeal to the Supreme Court of Yukon.
- How long does an adjudication take?
The time to complete an adjudication and issue a written report depends on a number of factors including the number and complexity of the issues for adjudication, the nature and number of the records, the number of other adjudication underway and whether there are any procedural delays such as the need for additional submissions.
- Who participates in an adjudication?
If the adjudication involves a decision of the public body to refuse access to records or information, the person who requested the adjudication, the public body and any third parties are always provided an opportunity to participate in the adjudication.
If the adjudication is about a decision of the Access and Privacy Officer (APO) such as an extension of time for responding to an access request or a fee waiver, the person who requested the adjudication and the APO participate in the adjudication.
The IPC may decide to give notice of the adjudication and invite participation from any person who, in the opinion of the IPC, should have received notice of the adjudication or may be able to present useful information to aid in the disposition of the issues.
The person who asked for the review, the public body and any person given notice of the complaint may be represented at the adjudication by legal counsel or an agent. All adjudication participants are collectively referred to as parties.
- What is a written submission?
A party’s representations to the IPC are made by way of a written submission. A submission contains a party’s argument and evidence presented to persuade the IPC to resolve the issue in the adjudication in a particular way. Evidence is what a party provides, in addition to arguments, during the adjudication to prove or disprove the facts in dispute. The IPC is not bound by ordinary rules of evidence. However, where a party is submitting evidence, it is preferable that it be in affidavit form.
Parties are also encouraged to review any relevant IPC Adjudication (formerly Inquiry) Reports, other case law or statutory materials and include references to such material in their submission.
Informal Case Resolution material to preserve the integrity of the informal case resolution process, a party may not refer to or include in its submission any information or records related to the informal case resolution process and attempts to settle the issues including the investigator’s opinions or recommendations on the issues. The IPC will not consider informal case resolution materials in reaching a decision. If a submission contains any informal case resolution material, the Registrar will require the party to remove the material from the submission. This does not include factual outcomes of informal case resolution, for example, changes in the issues or exceptions claimed, the scope of disputed records or the amount of fees assessed by the records manager.
- Can a submission be received in camera* (in private)?
The IPC exchanges submissions received from a party with the other parties unless a party requests that some or all of its submission be kept private or in camera. If a party wishes to submit material in camera, it must obtain the IPC’s approval ahead of time in accordance with the time limit set out in the notice of inquiry. The party seeking approval must submit to the Registrar a letter requesting the IPC’s approval of the in camera information. The letter should provide the reasons why that material should be received in camera and include a copy of the submission with the proposed in camera portions highlighted.
For the IPC to agree to receive material in camera, it must be information that:
- if revealed would result in the disclosure of some or all the details of the disputed information in the record, or
- might itself be subject to an exception under the ATIPP Act.
If the IPC agrees to receive in camera evidence and arguments, it will be kept from the other parties and will not be revealed in the written report. The Registrar will inform the parties if the IPC’s decision is to accept material on an in camera basis.
- What if a party does not make a submission?
If any party does not make a submission by the date specified by the IPC, the adjudication may proceed and a decision may be made in the absence of any submission.
- What is the sequence for submissions?
- The public body provides the initial submission. If the IPC considers it appropriate, the IPC may ask other parties to provide an initial submission. A party’s initial submission should include its argument about how the relevant sections of the legislation apply in the circumstances of their case and explain how the evidence supports its position.
- The applicant or third party provides a response submission. It should focus on the issues set out in the notice of inquiry and the information provided by the other parties in their initial submission.
- The parties that provided initial submissions are then given an opportunity to provide a reply submission. The reply submission must only reply to what is contained in the response submission.
The Notice of Adjudication sets out the date by which submissions must be received in the IPC’s office.
At any stage of the adjudication process, the IPC may request an additional submission from any party where necessary or desirable. Unsolicited supplementary or additional submissions will only be considered in exceptional circumstances.
- Can I request an extension of time for providing a written adjudication submission?
The notice of adjudication will set out the date for receipt of the written submissions. If a party requires an extension of time for providing a submission, the party must send a letter to the Registrar at least three days before the due date for the submission. The letter should include the reasons for requesting an extension. The IPC will then decide whether to allow or refuse an extension of time to provide the submission. The Registrar will notify the parties of the IPC’s decision.
- How are submissions accepted and exchanged?
The Registrar accepts and exchanges submission on behalf of the parties.
The IPC accepts written submissions in all formats (i.e. mail, in-person and electronically). There are significant security risks however associated with the use of e-mail communication so we strongly recommend that you encrypt e-mail submissions or request a Secure File Transfer (SFT) link from the Registrar. Please contact our office if you require additional information about how to encrypt documents.
Submissions should be addressed to:
Office of the Information and Privacy Commissioner
3162 Third Avenue, Main Floor
Whitehorse, YT Y1A 1G3
- How do I make a preliminary objection?
A party who wants to make a preliminary objection must direct their objection to the IPC. The notice of inquiry specifies the date by which any preliminary objections must be made to the IPC. The objections must be provided in writing. The party objecting should state the objection(s) and include any relevant supporting information. Before making a decision, the IPC will decide whether to give the other parties an opportunity to make representations. The IPC will make a decision about the objection(s) before proceeding further with the review. The IPC will provide her decision in writing to the parties.
- Who has the burden of proof in an adjudication?
Section 102 of the ATIPP Act (2018) sets out the burden of proof in an adjudication.
- Denied access to information – a decision to deny access by the public body, the public body has the burden of proof.
- Granting access to Third Party information – where the public body has decided to release third party information, the third party has the burden of proof.
- Correction of Personal Information, the complainant has the burden of proof.
When conducting the adjudication, the IPC will decide which party bears the burden of proof for these issues.
- Why does the IPC publish reports?
The IPC reports publishes reports on our website for educational purposes. To protect individuals’ privacy names and other identifying personal information is removed from the report. The names of public bodies and parties who are businesses or corporate bodies are published in the report.
- IPC Glossary of Terms
Access and Privacy Officer (APO): A member of the public service designated as the “access and privacy officer” for the purposes of the ATIPP Act. The APO has authority to extend the timelines for a response and to decide whether to waive all or part of the fees associated with a request.
Affidavit: A written statement of facts made under oath. Affidavits are a means of providing evidence. An affidavit must be affirmed or sworn before a Notary Public for the Yukon Territory.
Applicant: A person who makes a request under for access to a record the ATIPP Act. Also a person who makes a request for correction of their personal information in a record, or requests a review of the records manager’s grant of an extension of time to respond to a request or a refusal to waive a fee.
Burden of Proof: The party with the burden of proof must convince the IPC of its case in order to be successful at the adjudication. In most cases, the Notice of Adjudication states which party bears the burden of proof.
Evidence: Information submitted to prove or to disprove a fact or allegation. This may include documents, physical evidence and oral or written testimony. Evidence received by affidavit is sworn evidence.
In Camera: In private. Evidence, arguments or records received in private are considered to be in camera.
Adjudication: The second stage in the complaint process in which the IPC receives submissions from the parties, considers and decides all questions of fact and law in relation to the issues for adjudication and disposes of the issues in a written report.
Complaint: An Applicant can request the IPC investigate certain decisions of the public body or records manager. Complaint investigations proceed in two stages. When the IPC receives a complaint, most cases proceed to informal case resolution. If the issue(s) are not completely settled in informal case resolution, the IPC can decide to proceed to adjudication.
The ATIPP Act authorizes the IPC to review the following.
- a refusal by a public body to grant access or obliterate a record,
- a refusal by a public body to correct or annotate a record,
- a decision by a public body to release a third party’s personal or business information,
- a complaint that a public body improperly collected, used, or disclosed personal information,
- a decision of the access and privacy officer to extend the time limit for responding to a request for access to records,
- the determination of the cost estimate by the access and privacy officer,
- a decision of the access and privacy officer to refuse to waive a part or all of the fee for processing an access request,
- a decision by the access and privacy officer to refuse to accept and process an access request,
- a decision to declare a request for access to a record abandoned.
Party: The person who requested the complaint, the public body, and a third if applicable.
Public Body: An organization or entity that is subject to the ATIPP Act. Public bodies include departments, secretariats or other similar executive agencies of the Government of Yukon, boards, commissions, foundations and corporations that are agents of the Government of Yukon and those organizations listed in Schedule 1 of the Access to Information and Protection of Privacy Regulation.
Informal case resolution: The first stage in a complaint. The IPC authorizes an investigator to try to settle the issues of the complaint. Informal case resolution may succeed in settling the issue(s), reducing the number of issues in dispute, clarifying issue(s) and help the parties better understand the ATIPP Act. If the matter cannot be totally settled in informal case resolution, the IPC may conduct an adjudication.
Registrar of Inquiries: The IPC staff member responsible for all administrative aspects of adjudications.
Representations: Information provided to the IPC by a party about the issue(s) for adjudication. Representations are usually made in writing by way of a submission (defined below).
Submission: The written argument and evidence in support of a party’s position provided to the IPC.
Third party: In relation to a request for access to a record or information or for correction of personal information, means any person, group of persons or organization other than the person who made the request or the public body.