Health department failed to meet public records obligations

The Northwest Territories government has put providing access to public records on the back burner during the Covid-19 pandemic, the territory’s information and privacy commissioner says, failing to meet its democratic obligations. 

In his latest annual report, commissioner Andrew Fox said his office received a number of complaints in the past year about public bodies not responding to requests for access to information within legally mandated deadlines.

Fox noted the number and scope of requests had increased and, in many cases, the territorial government placed blame on the pandemic’s added pressure on staff. 

He pointed out, however, that the NWT legislature has not granted relief from the deadlines. He called that a “clear indication” that keeping government operations open and transparent should remain a priority during the pandemic. 

“While the need to maintain ‘core’ government services is clear, I have a sense that the access to information and protection of privacy functions are viewed by some in government as outside that ‘core,’” Fox wrote.

In one case, an unidentified member of the press made an information request to the Department of Health and Social Services on April 20, 2020, related to the territory’s Covid-19 response. 

Under legislation at the time, the department was required to respond within 30 days, with the potential to extend a further 30 days. On May 22, however, the department said it needed more time as staff were dealing with the public health emergency and would be unable to respond for at least another 60 days. 

Nearly six months later, the department still had not provided the information. 

Reviewing the matter in October 2020, then-privacy commissioner Elaine Keenan Bengts concluded the department had no legal basis to extend the timeline to respond. She stressed that the territory’s Access to Information and Privacy Act is “quai-constitutional in nature,” meaning it takes precedence over all other legislation, unless explicitly stated otherwise. 

Access to information ‘fundamental’ to democracy

“The Department of Health and Social Services has chosen, quite deliberately, to avoid accountability for their actions during the pandemic on the basis that they are too busy managing the pandemic to be dealing with what they consider to be the less important task of protecting democracy,” Keenan Bengts wrote. “They have, of their own admission, diverted resources away from their legal obligations to provide access to public records in order to address Covid-19. This is not a legally supportable position, nor is it acceptable.”

In another case, an unnamed member of the press also made a request to the health department on April 21, 2020, where it said it could not respond due to “operational shortages” related to the pandemic. 

The department did not provide the requested records until November 6, following intervention from the privacy commissioner. 

“While protection of the public from the ravishes of a global pandemic are of urgent and critical importance, our democratic rights and freedoms and civil liberties are of equal importance,” Keenan Bengts wrote in reviewing the case. “Public scrutiny of steps taken by government during the pandemic is as important as the control of the disease. Access to information is not merely an obligation that can be shunted off to the side because of the pandemic. Access to information in these circumstances is a fundamental check and balance on the exercise of emergency powers that will help to protect our democracy both during the pandemic and after it passes.” 

Canada’s information commissioner, Caroline Maynard, also stressed the importance of providing access to information during the pandemic in an April 2020 statement. 

“The right of access is a means by which we not only hold our government to account, but determine how and why decisions were made and actions taken, in order to learn and find ways to do better in the future,” she wrote. “It is only by being fully transparent, and respecting good information and management practices and the right of access, that the government can build an open and complete public record of decisions and actions taken during this extraordinary period in our history – one that will inform future public policy decisions.”

Not only did the media face challenges getting timely responses from the NWT health department regarding information requests, the office of the information and privacy commissioner also experienced lengthy delays.

Following the review of a case in 2019 where a department employee mistakenly sent a patient’s personal health information to their relatives, the commissioner made eight recommendations to prevent future privacy breaches. 

While that review report was sent to the health minister on May 11, 2020, and the commissioner’s office followed up numerous times, the minister did not accept the recommendations until June 30, 2021. The department attributed the delay to “competing priorities related to the pandemic response.” 

Department working to catch up

Many NWT government staff have been redeployed to help with the territory’s response to Covid-19. Fox said even before the pandemic, however, there have been long-standing issues with understaffing, records management, and challenges retaining trained staff who understand the government’s record keeping systems. 

“That can be a real problem in the long term because even if you have one or two good people in there, if you’ve got work for three or four or five, you’re going to burn them out and you’re going to see that person move on,” he recently told Cabin Radio. 

“I am cautiously optimistic, but I am also sort-of holding my breath hoping that sufficient, qualified people are able to get hired into those units.” 

There have been some improvements to how the territory handles requests for access to public records.

Changes to the NWT’s information and privacy laws, which came into effect in July, have tightened timelines to respond to requests and made it more difficult for public bodies to get extensions. The creation of an access and privacy office has also centralized the request process for many public bodies, although departments are still responsible for identifying and providing copies of requested records.

Jeremy Bird, a spokesperson for the Department of Health and Social Services said it has devoted more resources to responding to information requests to “catch up with the unprecedented surge in volume and size of requests.”

Bird said one measure the department has taken to reduce response times is to clarify with applicants exactly what they are looking for, to cut down on the volume of records that need to be reviewed.

“Being more specific helps pinpoint records being sought,” he wrote in an email. “Some requests were large, and most records needed to be extracted by staff who were responding directly to the pandemic.”