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Graham Steele: Simple changes can fix Nunavut’s neglected access system

Nunavut's territorial flag flies on a flag pole in Ottawa, June 30, 2020. Adrian Wyld/The Canadian Press
Adrian Wyld/The Canadian Press

Graham Steele has seen access to information from all sides: as a requester, a lawyer, an Opposition party researcher, an MLA, an NDP cabinet minister in Nova Scotia and now the Information and Privacy Commissioner of Nunavut. The system is complicated, he says, but the fixes to many of the most pressing problems are not.

You’ve been in your current role for more than two years now. Big picture, what do you think of the system?

I think the system is very good in principle, but the No. 1 thing that worries me is delay. Most places in Canada are very badly backlogged, and it takes far too long for the process to finish. In Nunavut, there are no backlogs with appeals. That’s, for me, a top priority. I tend to issue my decisions 1-3 weeks after the paperwork is in. However, what I would say is it’s the first level [stages of a request] that can sometimes see some substantial delays in Nunavut. There is a serious capacity issue within the government of Nunavut. Even though the law sets firm deadlines, there are too many public bodies that simply do not respond within the legislated deadlines, and there are no consequences for missing the deadlines. I can scold them, but scolding them is a pretty mild punishment.

How do departments respond when they’re scolded? 

Some are good. But the ones that seem to have chronic problems seem to shrug and say: “Look, we’re doing the best we can with the resources we have.” Nunavut is one of the jurisdictions where the commissioner only has the authority to recommend. I don’t have order making powers. So I can’t make anyone do anything. And because I can only make recommendations, that’s as far as it goes.

So does the appeals process work if the commissioner doesn’t have order making power?

No, I don’t think it works. And from the moment I got here, I said to the government: “You need to change this.” It’s been in all my annual reports so far. I think giving the order power is a quick and easy thing that will make a difference in the way public bodies approach their response to access requests. But so far, the government has shown no interest in adopting that measure. They’re content with the system the way it is.

Do you have other ideas to improve the access regime?

It’s all superficial, simple things. In Nunavut, the ATIPP coordinators [ATIPP is the name of the Access to Information and Privacy Protection Act] are paid too little. It’s an entry-level job that almost never comes with housing, which is a really big deal in Nunavut as there’s a huge housing shortage. I can’t tell you how important it is in terms of what jobs people apply for. In other jurisdictions, there are people who make a career out of being an access coordinator. In Nunavut, it’s a stepping stone to other jobs. People move out as soon as they can to find a job with housing and higher pay. The result is this constant churn. No matter how much training you do, you don’t have to wait long before you’re training someone new. 

Why is it so damaging to have so many new people in the role of access analyst or coordinator?

So, the delays come about because instead of having experienced policy people, you often have newcomers to government – people who are brand new civil servants, who are just learning their way around government. They don’t know where to look for things. 

And then they have to learn the legislation.

Let’s not kid ourselves. ATIP Acts across the country are complicated pieces of law. They’re written in legal jargon, and some of it is complicated – especially when you get into the details. And that’s why every jurisdiction has plain language guides for a lot of the coordinators, but the guides can never capture all the nuances of the law. It can be quite technical. For example, the exemption that deals with the unreasonable invasion of third-party privacy: It’s the most commonly applied redaction and it’s the most difficult. It’s hard to get your head around what the act is telling you to do. So people are being excessively cautious and they’re over-redacting. But that is because it tends to be relatively new and inexperienced people who haven’t dealt with this type of thing before. 

So why isn’t the government fixing this?

In Nunavut, my sense is that the government, by and large, wants to do the right thing. It’s simply not a priority. I would characterize the problems in Nunavut as a matter of neglect rather than actively obstructing the release of information.

What’s your elevator pitch for why people should care about this? 

The health of our democratic system depends on people trusting the process, and the only way to trust the process is for people to be able to lift the curtain of what’s going on inside government. Trust is eroded when information is hidden or looks like it’s being hidden.

This interview has been edited and condensed.

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