Nunavut’s Information and Privacy Commissioner has determined that the Ethics Officer, appointed under the Public Service Act, is not a “public body” under the Access to Information and Protection of Privacy Act (ATIPPA).
This decision stems from a request by a former Government of Nunavut (GN) employee for access to records and a subsequent privacy breach complaint against the Ethics Officer.
Commissioner rules on jurisdiction
The ruling addressed the preliminary issue of whether the Ethics Officer qualifies as a “public body” whose records and actions are subject to ATIPPA’s provisions. The Commissioner’s analysis hinged on the statutory definitions and the degree of control the GN exercises over the Ethics Officer.
The Ethics Officer had refused to disclose documents requested by the applicant, leading to a review by the Information and Privacy Commissioner. Both the Ethics Officer and the responsible Minister submitted arguments asserting that the Ethics Officer does not fall under the ATIPPA’s definition of a public body.
The applicant, upon reviewing these submissions, conceded the jurisdictional point.
Legal framework and analysis
The Commissioner’s decision delves into the nuances of the ATIPPA and related legislation. According to the ATIPPA, a “public body” includes a department, branch, or office of the GN, or an entity designated by the regulations. The Ethics Officer, however, is not listed in these regulations.
Moreover, the Public Service Act outlines the independent nature of the Ethics Officer’s role. Appointed by the Commissioner in Executive Council on the Minister’s recommendation, the Ethics Officer is not a public servant and operates independently from the GN’s hierarchical structure. This independence is crucial for the Ethics Officer’s mandate, which includes investigating allegations of wrongdoing within the GN, ranging from legal violations to misuse of public funds and harassment.
The Commissioner noted, “The strongest argument in favour of finding that the Ethics Officer is a ‘public body’ is the name of the position.” However, this argument was deemed legally insufficient. The position’s name alone could not override the detailed statutory context indicating the Ethics Officer’s operational independence from GN control.
Implications for access and privacy complaints
The ruling clarifies that the Ethics Officer’s records are not subject to disclosure under the ATIPPA. Consequently, the Commissioner lacks jurisdiction to review access appeals or privacy breach complaints against the Ethics Officer.
The decision aligns the Ethics Officer’s status with other independent officers of the Legislative Assembly, such as the Chief Electoral Officer and the Representative for Children and Youth, none of whom are considered public bodies under the ATIPPA.
The Commissioner emphasized, “The Ethics Officer shares many characteristics with independent officers of the Legislative Assembly. The terms of appointment show the GN exercises very limited control over the Ethics Officer.”
Final comments and recommendations
In closing, the Commissioner addressed the procedural aspects of the Ethics Officer’s initial refusal to disclose documents. The Ethics Officer had cited the applicant’s failure to exhaust the ATIPPA process with other departments. The Commissioner clarified that ATIPPA does not require applicants to exhaust one avenue before pursuing another, reinforcing the applicant’s right to seek records from multiple public bodies simultaneously.
While the Commissioner’s jurisdictional ruling resolves the current case, the decision also serves as a reference for future cases involving similar questions of statutory interpretation.
The report, although not setting a formal precedent, provides guidance on the application of ATIPPA to positions created under the Public Service Act.
The Commissioner’s decision delineates the boundaries of ATIPPA’s applicability, reaffirming the independent status of the Ethics Officer and clarifying procedural rights for applicants. This ruling highlights the complexity of governance structures and the ongoing need for clarity in the intersection of public service roles and privacy legislation.
With the jurisdictional question resolved, no recommendations were made to the Minister responsible for the Public Service Act. However, the ruling underscores the importance of statutory clarity in defining the scope of privacy and access to information laws.
For more information, see Ethics Officer (Re), 2024 NUIPC 16 (CanLII).
