In October, Nunavut Premier, Eva Aariak, announced that the government will introduce legislation to amend the Access to Information and Protection of Privacy Act. The announcement follows complaints by the Territory’s Information and Privacy Commissioner, Elaine Keenan Bengts, that the legislation lags behind and does not provide her the power to ensure government compliance. She had also recommended that the legislation be extended to municipalities. The Commissioner’s frustration came through clearly in the following statement in her 2010-11 Annual Report:
“It is frustrating, to say the least, when year after year, these recommendations come to nothing. This year, therefore, I will focus on only one recommendation for change – the one which I consider most critical to ensure that the fundamental purposes of the Act can be met – privacy oversight.”
The new legislation deals with the rules governing how government can collect, use and disclose personal information. This includes a limitation that personal information is used only for the purposes for which it is collected, and that it is not disclosed except in accordance with the Act. Currently, the only section in the Act dealing with the consequences of a breach of the privacy rules is s. 59 (1) which makes it an offence to “knowingly” collect, use or disclose personal information in contravention of the Act or the regulations. In the view of the Commissioner, this does not serve as a deterrent, nor encourage the necessary level of attention to privacy protection.
In response, the premier has announced that amendments will be tabled by the end of 2012 to make the legislation more effective and to ensure, “better accountability and transparency.” Currently, unlike her provincial counterparts in provinces such as Ontario and British Columbia, Nunavut’s Commissioner has no formal powers to deal with breaches of the privacy rules, and cannot make binding orders regarding matters of access. She can only make recommendations to government – recommendations which can easily be ignored. In a case where recommendations are ignored, the only recourse is an expensive and time-consuming application to the courts.
The Premier specifically announced that, “the proposed amendments will allow individuals the ability to complain to the Information and Privacy Commissioner if they feel that the Government of Nunavut has inappropriately collected, used, or disclosed their personal information. It will also make it mandatory for departments to report privacy breaches within their departments to the Information and Privacy Commissioner”. Order-making powers may be part of the amendment package. Other changes may well involve provision for recourse to the courts for damages as a consequence of privacy breaches or improper collection or use of personal information.