N.W.T.’s access-to-information system slow and frustrating, users say

Government not living up to its promise of transparency, according to former MLA

Understaffing and a lack of government transparency are interfering with a system designed to hold public bodies accountable and keep the public informed, according to some who use the N.W.T.’s access to information system.

An access to information and protection of privacy (ATIPP) request allows individuals to ask for copies of government records. That can include anything from emails, meeting minutes, records about deceased family members, or any other documents held by government bodies.

“It’s a very important tool,” said Kevin O’Reilly, a former MLA who was part of the N.W.T.’s 18th and 19th legislative assemblies. O’Reilly has submitted ATIPP requests as a member of the public and as a politician.

“Partly because I wanted to make sure that information — sometimes that I might even see as an MLA — could be made available to the public.”

But information and privacy commissioner of the Northwest Territories, Andrew Fox, says there’s been an increase in complaints about delays in the system and he suspects the office handling the requests — the access and privacy office (APO) — is sometimes working outside the ATIPP legislation.

When an applicant submits an ATIPP request, the APO has 20 days to provide that information. If it needs more time, the office can grant itself an extension of another 20 days. Further extensions need approval from the information and privacy commissioner.

Fox didn’t have exact numbers for how often ATIPP deadlines are missed, but he said that in July 2022 the APO was late in providing responses about 54 to 56 per cent of the time.

“That’s gotten worse,” he said.

O’Reilly has one request that’s been outstanding for seven months, and one CBC North reporter is still waiting for an ATIPP he filed in 2021.

APO breaching ATIPP legislation in the name of efficiency

Despite increasing complaints over delays, Fox says his office is seeing fewer requests from the APO for deadline extensions.

“I think what [the APO] is choosing to do is focus its efforts on actually doing the work for the responses rather than going through the procedural piece of asking us for time to do that,” he said.

Emily Blake, a reporter at Yellowknife’s Cabin Radio, says she’s experienced such delays firsthand. She says she has an ATIPP request that she filed at least 60 days ago and she hasn’t yet received a response — and it’s not the first time, she says.

When that happens, the applicant can request a review with the commissioner. That typically leads to the commissioner ordering the public body to respond.

Blake says she’s been through that process but still hasn’t heard back from the APO.

“It’s pretty concerning to see the government breaking their own laws and there doesn’t seem to really be any consequences for that, or any impetus to change,” she said.

If the APO doesn’t comply with the information and privacy commissioner’s order, the applicant can bring the case to the N.W.T. Supreme Court.

Staffing shortages root of delay

Fox, O’Reilly and Blake all believe staffing shortages are at least partly to blame for ATIPP delays.

But as Fox notes in the office of the information and privacy commissioner’s latest annual report, “complying with the Access to Information and Protection of Privacy Act is not a policy option: it is a legal requirement.” He also says in the report that the APO is not properly staffed and that without sufficient resources “this mechanism will not function properly.”

Blake says the government is obligated to hire enough staff to meet the legislated requirements.

“I understand it might be unpopular to hire more government staff or to put more money towards something like access and privacy, but I think it’s pretty fundamental to democracy that those roles are being fulfilled in the government,” Blake said.

A spokesperson for the APO said the office has five employees when fully staffed but that it is working to fill two vacancies — one of which has been open since June.

CBC asked the APO for an interview, but a spokesperson said staff were busy responding to requests. Since APO falls under the department of justice, communications advisor Ngan Trinh responded on APO’s behalf.

She wrote that while the APO strives to process requests within the timeframes outlined in the ATIPP Act, that doesn’t always happen. She said there are some cases when the office speeds up the process by omitting the extension request, as Fox noted.

Trinh also said that completing requests can be a complicated process involving back-and-forth communication with the applicant and the government department. She said that it sometimes involves compiling thousands of pages that staff must review line by line.

Gov’t transparency needs to come from the top, says former MLA

O’Reilly believes access-to-information is not a government priority, which also contributes to delays.

“Even though the GNWT says that it has an open-government policy, they’ve done not very much to actually implement that and develop a culture of open government within the civil service,” he said, adding that he doesn’t blame the civil service.

“I think the leadership has to come from the top in terms of making more information public and readily accessible.”

Blake described one ATIPP where she was following up on an investigation the territory had launched into allegations of mismanagement and safety concerns at Yellowknife’s day and sobering centre.

“I could see in the communications a discussion about how they were going to respond to my request about what was going on with the investigation, and basically discussing hiding that information from me,” she said.

“As a reporter, I’m not interested in attacking people or ruining anyone’s life, I’m just trying to get the public the information that they need to make decisions and to hold government officials accountable to the public, which is their job.

“And I think public officials should want to be accountable to the public, you know, recognizing that they’re human and that they do make mistakes.”

Still, both Blake and O’Reilly said that overall, the system has improved in recent years.

In 2021, the territory updated its ATIPP legislation for the first time since it came into effect in the ’90s. That update created the APO to handle ATIPP requests and it gave the information and privacy commission authority to order departments to release information, rather than just make a recommendation.

Fox said that those changes were in response to concerns about delays, but echoed O’Reilly that a commitment to transparency has to come from the top.

“If there isn’t really good leadership on valuing access to information and as a fundamental function of government, as opposed to being an annoying add-on, it can slow things down quite a bit,” he said.

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