Decision under ATIPP Act authorizes PSC to refuse access to information

Mon, Aug 12, 2019

Decision under ATIPP Act authorizes PSC to refuse access to information

IPC decision is based on limited right to refuse to confirm or deny existence of records

WHITEHORSE – The Information and Privacy Commissioner (IPC) for the Yukon, Diane McLeod-McKay, has issued a decision that authorized the Public Service Commission (PSC) to refuse access to records requested by an applicant. The PSC was relying on a provision of the Access to Information and Protection of Privacy Act (ATIPP Act) which had never been interpreted by the IPC in the past.

The PSC had received an access to information request from an applicant, who was seeking personal information about another individual. The PSC refused to confirm or deny the existence of the record, based on its authority, under paragraph 13 (2)(c) of the ATIPP Act. The applicant then asked McLeod-McKay to review that refusal.

She found that the PSC had met the burden of proof to rely on this provision, because it proved that revealing whether the records existed would amount to an unreasonable invasion of an individual’s personal privacy.

“Looking at the ATIPP Act as a whole, and its purposes, it is clear that exceptions to access to information are carefully crafted to limit access only as much as necessary to protect certain interests,” said McLeod-McKay. “These exceptions were designed to strike the correct balance between the right of applicants to access information and the need for public bodies to limit access in specific circumstances. This provision should only be relied on by public bodies when it is necessary to protect certain interests.”

McLeod-McKay indicated that “on its face” paragraph 13 (2)(c) appears to allow public bodies to refuse to confirm or deny the existence of any record containing personal information but she determined that a broad interpretation of this nature would undermine the rights of individuals to access personal information, including about themselves. She determined that in order to rely on this provision, a public body must first consider the exceptions to the right of access in the ATIPP Act, such as the requirement to refuse access to personal information when doing so would amount to an unreasonable invasion of an individual’s personal privacy.  It must then satisfy itself that refusing to confirm or deny the very existence of the requested record would promote or protect the same interest. 

McLeod-McKay also made one recommendation to the Public Service Commission. That recommendation cannot be shared publicly, in order to protect the confidentiality of the personal information at issue. The Public Service Commission accepted and implemented the recommendation.

The IPC’s decision in this case can be found on her website here.

The Ombudsman, Information and Privacy Commissioner and Public Interest Disclosure Commissioner is an independent officer of the Yukon Legislative Assembly. For more information, please go to http://www.ombudsman.yk.ca/.

Contact:

Diane McLeod-McKay

Yukon Ombudsman, Information and Privacy Commissioner & Public Interest Disclosure Commissioner                   

info@ombudsman.yk.ca

867-667-8468