Access and Privacy Officer (APO): A member of the public service designated as the “access and privacy officer” for the purposes of the ATIPP Act. The APO has authority to extend the timelines for a response and to decide whether to waive all or part of the fees associated with a request.

Adjudication: The second stage in the complaint process in which the IPC receives submissions from the parties, considers and decides all questions of fact and law in relation to the issues for adjudication, and disposes of the issues in a written report.

Applicant: A person who makes a request under for access to a record the ATIPP Act. Also a person who makes a request for correction of their personal information in a record, or requests a review of the records manager’s grant of an extension of time to respond to a request or a refusal to waive a fee.

Informal case resolution: The first stage in a complaint where the IPC authorizes an investigator to try to settle the issues of the complaint. Informal case resolution may succeed in settling the issue(s), reducing the number of issues in dispute, clarifying issue(s) and help the parties better understand the ATIPP Act. If the matter cannot be totally settled in informal case resolution, the IPC may conduct an adjudication.

Public body: An organization or entity that is subject to the ATIPPA. Public bodies include departments, secretariats or other similar executive agencies of the Government of Yukon, boards, commissions, foundations and corporations that are agents of the Government of Yukon and those organizations listed in Schedule 1 of the Access to Information and Protection of Privacy Regulation.

Third party: In relation to a request for access to a record or information or for correction of personal information, means any person, group of persons or organization other than the person who made the request or the public body.

Most complaints are resolved through the Informal Case Resolution (ICR) process. If a complaint is not resolved during this process, the matter must advance to a Formal Investigation, sometimes referred to as an adjudication. 

The IPC may initiate their own investigation, known as an own motion investigation, on a decision or matter that the commissioner reasonably believes could be the subject of a complaint.

A Formal Investigation (FI) is the final stage in a complaint investigation process conducted by the IPC. The involved parties are entitled to make representations to the IPC about the issues identified for investigation. In most inquiries, the representations are made in writing and the parties do not appear before the IPC.

A notice of formal investigation is issued to the parties that outlines the next steps and will confirm:

• the parties to the investigation,
• the sections of the ATIPPA that will be considered,
• the issues for investigation,
• the timeline for notifying the IPC of any preliminary objections to the formal investigation,
• the schedule for delivery and exchange of initial and reply submissions from the parties, and
• a deadline for requesting the IPC’s approval for “in camera” submission material.

During the FI, the IPC considers the fact report prepared by the Investigation and Compliance Review Officer from the Informal Case Resolution (ICR) team and agreed upon by the parties, the representations received from the parties, reviews any records in dispute, and decides how each issue should be resolved and makes their recommendation(s). The IPC issues a written report to the parties setting out their findings, recommendation(s) and reasons for the findings and recommendation(s).

Some of the things the IPC can recommend are:

• the release of some or all information in a record,
• the modification of a fee waiver, or
• the correction of personal information.

A Formal Investigation concludes when the IPC issues their written report. If the written report includes recommendation(s), the public body has 30 days to decide whether it will follow the IPC’s recommendation(s) and give notice of that decision to the IPC and any other person given the report (i.e. the applicant and third parties, if applicable). If the public body does not give notice of its decision within the required time, the public body is deemed to have refused to follow any recommendation(s). If the public body decides not to follow the IPC’s recommendation(s), the public body must, in writing, inform the persons who received the IPC’s report of their right to appeal to the Supreme Court of Yukon.

The time to complete an adjudication and issue a written report depends on several factors including the number and complexity of the issues for investigation, the nature and number of the records, the number of other investigations underway, and whether there are any procedural delays such as the need for additional submissions. 

If the investigation involves a decision of the public body to refuse access to records or information, the person who requested the investigation, the public body, and any third parties are always provided an opportunity to participate in the investigation.

If the investigation is about a decision of the Access and Privacy Officer (APO), such as an extension of time for responding to an access request or a fee waiver, the person who submitted a complaint and the APO participate in the investigation.

The IPC may decide to give notice of the investigation and invite participation from any person who, in the opinion of the IPC, should have received notice of the investigation or may be able to present useful information to aid in the disposition of the issues.

The person who asked for the review, the public body, and any person given notice of the complaint may be represented at the investigation by legal counsel or an agent. All investigation participants are collectively referred to as parties.

A party’s representations to the IPC are made by way of a written submission. A submission contains a party’s argument and evidence presented to persuade the IPC to resolve the issue in the investigation in a particular way. Evidence is what a party provides, in addition to arguments, during the investigation to prove or disprove the facts in dispute. The IPC is not bound by ordinary rules of evidence. However, where a party is submitting evidence, it is preferable that it be in affidavit form.

Parties are also encouraged to review any relevant IPC Investigation Reports (formerly Adjudication or Inquiry Reports), other case law or statutory materials and include references to such material in their submission.

The IPC exchanges submissions received from a party with the other parties unless a party requests that some or all of its submission be kept private or in camera. If a party wishes to submit material in camera, it must obtain the IPC’s approval ahead of time in accordance with the time limit set out in the notice of inquiry. The party seeking approval must submit to the Registrar a letter requesting the IPC’s approval of the in-camera information. The letter should provide the reasons why that material should be received in camera and include a copy of the submission with the proposed in camera portions highlighted.

For the IPC to agree to receive material in camera, it must be information that:

• if revealed would result in the disclosure of some or all the details of the disputed information in the record, or
• might itself be subject to an exception under the ATIPPA.

If the IPC agrees to receive in camera evidence and arguments, it will be kept from the other parties and will not be revealed in the written report. The Registrar will inform the parties if the IPC’s decision is to accept material on an in camera basis. 

If any party does not make a submission by the date specified by the IPC, the adjudication may proceed, and a decision may be made in the absence of any submission.

• Initial: The public body provides the initial submission. If the IPC considers it appropriate, the IPC may ask other parties to provide an initial submission.  A party’s initial submission should include its argument about how the relevant sections of the legislation apply in the circumstances of their case and explain how the evidence supports its position.
• Response: The applicant or third party provides a response submission. It should focus on the issues set out in the notice of inquiry and the information provided by the other parties in their initial submission.
• Reply: The parties that provided initial submissions are then given an opportunity to provide a reply submission. The reply submission must only reply to what is contained in the response submission.

The Notice of Investigation sets out the date by which submissions must be received in the IPC’s office.

At any stage of the investigation process, the IPC may request an additional submission from any party where necessary or desirable. Unsolicited supplementary or additional submissions will only be considered in exceptional circumstances.  

The Notice of Investigation will set out the date for receipt of the written submissions. If a party requires an extension of time for providing a submission, the party must send a letter to the Registrar at least three days before the due date for the submission. The letter should include the reasons for requesting an extension. The IPC will then decide whether to allow or refuse an extension of time to provide the submission. The Registrar will notify the parties of the IPC’s decision.

The Registrar accepts and exchanges submission on behalf of the parties.

The IPC accepts written submissions in all formats (i.e. mail, in-person and electronically). There are significant security risks however associated with the use of e-mail communication so we strongly recommend that you encrypt e-mail submissions or request a Secure File Transfer (SFT) link from the Registrar. Please contact our office if you require additional information about how to encrypt documents.

Submissions should be addressed to the Registrar of Investigation.

A party who wants to make a preliminary objection must direct their objection to the IPC. The Notice of Investigation specifies the date by which any preliminary objections must be made to the IPC. The objections must be provided in writing. The party objecting should state the objection(s) and include any relevant supporting information. Before making a decision, the IPC will decide whether to give the other parties an opportunity to make representations. The IPC will make a decision about the objection(s) before proceeding further with the review. The IPC will provide her decision in writing to the parties.

Section 102 of the ATIPPA (2018) sets out the burden of proof in an investigation.

• Denied access to information – a decision to deny access by the public body, the public body has the burden of proof.
• Granting access to third party information – where the public body has decided to release third party information, the third party has the burden of proof.
• Correction of personal information - the complainant has the burden of proof.

When conducting the investigation, the IPC will decide which party bears the burden of proof for these issues.

The IPC reports publishes reports on their website for educational purposes. To protect individuals’ privacy, names and other identifying personal information are removed from the report. The names of public bodies and parties who are businesses or corporate bodies are published in the report.