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
"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
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.
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