Nunavut's Information and Privacy Commissioner issued a scathing report last week, finding the territorial government did not have a lawful reason for failing to respond to a request for records.
CBC News, which isn't named in the report, submitted a request on Nov. 17, 2021, under access to information and protection of privacy (ATIPP) rules. Nunavut's ATIPP Act requires a response from the department within 25 business days. CBC News requested a review from the Information and Privacy Commissioner on June 21 as a result of the missed request.
Graham Steele, Nunavut's information and privacy commissioner, released his report on July 4. He wrote that after the request was sent, the department didn't confirm its receipt or issue a file number, as is standard practice.
There was some back-and-forth between CBC News and the department on the update of the request in the two weeks after it was sent.
There was more interaction between both parties over the following six months, but to date no response has been received.
That is weak sauce. I cannot enforce disclosure. I cannot enforce deadlines. I cannot enforce anything. - Graham Steele, Nunavut information and privacy commissioner
The department said the reasons for the application being missed has to do with staffing issues
"Like all departments, the Department of Education faces capacity issues within all of its divisions, including Policy and Planning, where the ATIPP and Records Management Coordinator is located," the deputy minister of education wrote in a submission.
The submission also attributed the delay to the department prioritizing a request for student records that are part of a federal day school class-action lawsuit.
The department wrote that it has received 115 requests related to that suit.
"As you can imagine, processing these requests has taken up a significant portion of the department's time, but completing them to the best of our ability is important on a number of levels," the deputy minister wrote.
The deputy minister also argued that the majority of ATIPPs are followed through on.
'Dropped the ball'
However, Steele found those reasons were not enough to justify the missed request and found the territorial government had violated the ATIPP Act.
"This is a deemed refusal case. As is painfully obvious from the facts recited above, the Department of Education dropped the ball, badly," Steele wrote.
"The present case is not, unfortunately, the only time Education has fumbled the ATIPP ball."
Steele cited a report he issued a year ago that found the department's ATIPP system did not provide enough training or resources and concluded "the department cannot go on like this. It must not go on like this."
"In the year since I wrote those words, the department did indeed 'go on like this': more vacancies, more turnover, little evidence of training or management support, no apparent system. We see the results in the present case," he wrote in his July 4 report.
"Applicants deserve better. Nunavummiut deserve better."
The incident was the result of neglect, not defiance, he noted, but wrote that the former has the same result as the latter.
Steele wrote that on May 25, he brought the issue of unfulfilled ATIPP requests up in the Legislative Assembly when he delivered his annual report.
"If a public body does not comply with the (ATIPP Act), all I can do is bring it to the attention of the public and the Legislative Assembly. That is weak sauce. I cannot enforce disclosure. I cannot enforce deadlines. I cannot enforce anything," Steele wrote.
Right now, Nunavut's privacy watchdog can only issue recommendations, meaning the Nunavut government can choose to ignore them.
"When I do write a review report, it is a non-binding recommendation to the minister, which a minister may reject. Even if a minister accepts my recommendations, there is no mechanism to ensure implementation."
Half of Canada's provinces and territories give their information and privacy commissioners the power to issue orders, including the N.W.T., which changed its laws two years ago.
Steele recommended that the department respond to CBC's information request.