The Yukon’s Information and Privacy Commissioner recently conducted an inquiry into one provision of the Access to Information and Privacy Act that had never been reviewed by her office before.

Commissioner Diane McLeod-McKay found the provision needed to be narrowed in its intention.

She conducted the review at the request of an applicant who was told by the Public Service Commission they are not permitted knowledge of the existence of documentation because it contained personal information about another individual.

The applicant sought “any communication between (Commission Employee) (Director of Labour Relations…) and (third party) including, but not limited to emails, phone calls, written messages, memos, notes, text messages, letters, etc… or any communications where (third party) is the subject or topic,” according to the released decision.

The Public Service Commission leaned on provision 13(2)(c) in the Access to Information Act, which states that a public body is authorized to deny the existence of records if they “contain personal information about the applicant or a third party.”

Seeing that the provision had not been reviewed in the past, McLeod-McKay pursued an inquiry.

“I think it’s a provision that’s important,” McLeod-McKay told the Star earlier this week.

McLeod-McKay explained the intention of the provision is to protect personal information as well as information in cases involving law enforcement and sexual harassment.

“When you’re trying to protect those interests, you want to make sure you don’t actually cause harm by revealing the existence of the record.”

As an example, McLeod-McKay explained that it would be harmful to reveal whether a file exists on an individual in the investigation of a crime.

Admitting to documentation might inadvertently publicize someone as a person of interest.

However, McLeod-McKay found that the wording of the provision was too vague to adequately fulfill its intended purpose.

“I narrowed what seems by a public body to be a very large ability confirm or deny the existence of any record containing personal information, which in government is a significant majority of them,” she said.

McLeod-McKay explained that under these qualifications, any document containing an email address or signature could be defined as personal and withheld from an applicant. This works against efforts toward transparency in government.

The commissioner looked to similar acts from Ontario, Alberta and B.C. to solve the problem and found they used more specific language to account for a similar challenge.

In Alberta’s Freedom of Information and Protection of Privacy Act, a public body may refuse to confirm or deny the existence of a record if disclosing that information would be an “unreasonable invasion of the third party’s personal privacy.”

Alberta’s wording was adopted in British Columbia, and Ontario’s Information Act similarly requires proof of “unjustified invasion” of privacy.

This means the existence of personal information in documentation is not a strong enough argument to hide it.

A public body must also prove the admission of the existence of personal information would create unreasonable or unjustified harm.

In her findings, McLeod-McKay required the public body to find unreasonable invasion of personal privacy in the reasoning for their decision.

She also made one recommendation to the public body that is not publicly available. Her 19-page decision was issued July 3, but not made available to the public until the past Monday.

If the applicant appeals the decision, the issue will go to Yukon Supreme Court.

“It’s the first time it’s been used, and it’s a valid provision,” McLeod-McKay said.

“Certain interests must be protected in order to not cause harm to individuals.”