*NOTE: All words and phrases marked with a * are defined in the Definition of Terms at the end of this information sheet.
You have been invited to participate in a written inquiry* with the office of the Information and Privacy Commissioner. A written inquiry involves sending a written submission* to the Commissioner. You are not required to come to the office of the Information and Privacy Commissioner for a written inquiry.
To help you get ready, we have prepared answers to the most commonly asked questions about written inquiries. At the end of this information sheet you will find definitions of some of the words that are used during a review* and inquiry.
If you have further questions regarding the inquiry after reading this information, please call the office of the Information and Privacy Commissioner for assistance.
Note: This information sheet provides information only. It is not a legal document and does not provide legal advice.
A. Why does the Information and Privacy Commissioner hold inquiries?
During a review the Assistant to the Information and Privacy Commissioner attempts to mediate a settlement between the applicant*, the public body* and any third parties*. However, if the applicant, public body and any third parties cannot settle their differences with the help of the Assistant, the Information and Privacy Commissioner (Commissioner) must decide the matter. On completing an inquiry, the Commissioner must make a report.
B. Why is the inquiry written?
The Commissioner decides whether to hold a written or oral inquiry. Since most inquiries involve argument on the application of a section or sections of the Access to Information and Protection of Privacy Act (the Act) and clearly defined issues, the Commissioner will hold a written inquiry in most cases.
C. Who participates in a written inquiry?
The applicant and the representatives of the public body to which the request was directed will be invited to make a submission in the form of argument and evidence*. Both parties have the right to have legal counsel or an agent prepare their submissions, at their own expense.
If an inquiry involves information about another party (a third party), the third party may be invited to make a submission. Third parties may have their submissions prepared by legal counsel or an agent, at their own expense.
The Territorial Archivist, because of her role in processing access requests, may also have involvement or interest in an issue being decided at an inquiry. The Commissioner may, at his discretion, invite the Territorial Archivist to be an interested party who may file submissions, but who would not normally be receiving an exchange of submissions.
Other organizations, agencies or individuals may have a broader interest in the implications of an issue being decided at an inquiry. The Commissioner may invite these organizations, agencies or individuals, known as intervenors*, to file submissions. Intervenors may also have their submissions prepared by legal counsel or an agent, at their own expense.
D. Are written submissions public documents?
The Information and Privacy Commissioner does not make written submissions available to the public once the inquiry is completed. Any requests for copies of the submissions will be referred to the parties who prepared them.
E. Can I submit material in camera* (in private)?
If submissions disclose the contents of the record in dispute or disclose sensitive information (personal or otherwise) that might be subject to an exception under the Act, a party may request that all or part of its submission containing such information be kept private. Where all or part of the submission is kept from the other parties, or from the public, it is called “in camera”.
A party who wishes to make an in camera submission, in whole or in part, to the Commissioner must give the Commissioner reasons as to why that material should be received in camera. If the Commissioner questions whether or not he should receive the material in camera, he will give the party who provided the material an opportunity to make further representations on why the material should be in camera. Having considered all of the representations and all of the circumstances, the Commissioner will then decide whether or not to accept the material in private.
Where a party has an in camera section in its submission, it should provide the Commissioner with one version of the submission, with the in camera section included and clearly identified. The party should also provide the Commissioner with a second version of the submission, with the in camera portion removed, which is suitable for distribution to the other parties.
Any record in dispute being submitted to the Commissioner would appropriately be provided “in camera”
F. What happens during a written inquiry?
During an inquiry the Commissioner has the same powers as a board of inquiry under the Public Enquiries Act.
The following is an outline of what is involved in each stage of a written inquiry.
1. Notice of Inquiry: A notice of inquiry is sent to the parties and the intervenors. The notice of inquiry generally contains the following information:
the parties involved in the inquiry;
a list of any intervenors;
the sections of the Act under consideration;
the issues to be decided at the inquiry;
a brief description of the record in dispute;
the date of the inquiry;
which party has the burden of proof* for the inquiry;
the deadlines for the receipt of initial and reply submissions; and
the number of copies of their submission packages the participants should provide to the office of the Information and Privacy Commissioner.
2. Fact Report: The Assistant to the Information and Privacy Commissioner distributes a fact report to all parties and intervenors. The fact report outlines the chronology of the formal request and request for review, and other factual information.
The fact report does not include any information from the mediation process or about attempts to settle the matter before it reached the inquiry stage. If the parties have any objections to the information contained in the fact report, they may state their objections in their submissions to the Commissioner. The report may become evidence*; however, the Commissioner ultimately decides the facts.
3. Initial and Reply Submissions: Parties are required to make written submissions to the Commissioner before the assigned deadlines enclosing the number of copies requested in the Notice of Inquiry. These copies will be forwarded by the office of the Information and Privacy Commissioner to the other parties. Each party must make its initial submission on the issues before the assigned deadline.
The office of the Information and Privacy Commissioner ensures that each party receives a copy of the other parties’ and intervenors’ initial submissions, unless the submissions disclose in camera material or the contents of the record in dispute, in which case those parts of the submissions may be withheld.
Intervenors are treated differently from the parties to an inquiry, and are entitled to make initial submissions only; they do not receive a copy of the parties’ initial written submission.
The parties may reply to each other’s initial submissions. Reply submissions must be filed before the deadline stated in the notice of inquiry. Intervenors do not have a right of reply. The Information and Privacy Commissioner ensures that any reply submissions are forwarded to all parties, for information only.
Where a party fails to make an initial submission, the Commissioner will not accept a reply submission from them.
Any objections on procedural issues must also be received by the date of the inquiry.
For more detailed information on Inquiry Submissions, [Click Here]
4. Decision: When the submissions have been finalized, the Commissioner receives the initial and reply submissions, request correspondence, notice of inquiry, fact report, copies of any records in dispute and any other material relevant to the inquiry, such as procedural objections. The Commissioner will then make a decision after considering all of the material. The Commissioner’s decision is issued in a written report.
Although the Commissioner will make his decision as soon as possible, there is no time limit for him to report. A copy of the report is given to the person who asked for the review, the public body, and any other parties or intervenors. The public body has 30 days to respond to any recommendations* by the Commissioner. If the public body does not give notice within this time they are deemed to have refused any recommendations of the Commissioner.
G. Are the decisions of the Information and Privacy Commissioner final?
If the public body does not follow the recommendations of the Commissioner, the public body must inform all persons to whom the Commissioner provided copies of the report of their right to appeal to the Supreme Court of the Yukon Territory. The Supreme Court may also hear an appeal of a Commissioner’s recommendation that a public body should refuse access to all or part of the record. A third party may also appeal a recommendation providing for the disclosure of their personal information. A party wishing to appeal must do so within 30 days of receiving the decision.
H. What should I do to prepare for a written inquiry?
How you prepare for a written inquiry depends largely on your role, the nature of the inquiry and which party has the burden of proof for the inquiry.
Submissions
Each party should make an initial submission and may make a reply submission.
Initial submissions should contain written argument that supports your case, together with evidence that supports your argument. Argument should include your interpretation of the relevant sections of the Act, general statements of principle or a discussion of how you believe the evidence you have presented relates to the issues to be determined by the inquiry. Initial submissions should be confined to the issues outlined in the notice of inquiry and should focus on presenting the necessary evidence and argument that support your case.
Evidence generally consists of documents that contain factual information that can be used to support your argument. The Act permits the use of affidavits* as evidence, but you are not required to submit an affidavit with your submission. The Commissioner will accept a written statement of your position.
Each party receives copies of the other parties’ and the intervenors’ initial submissions and may (but is not required to) prepare a reply submission that addresses the points raised in the other initial submissions.
The public body should include the record at issue as an “in camera” submission to the Commissioner. The Access to Information and Protection of Privacy Act provides the Commissioner with the authority to require any record to be produced. If it is not practical to make a copy of the record in dispute, then the public body should advise the Commissioner of this, so that he may make arrangements to examine the original record on site.
Reply submissions should be limited to commenting on the other parties’ initial submissions. Replies should not raise new facts, new issues or new factual allegations nor should they contain any new argument or evidence (including affidavits). Replies are exchanged between the parties for information purposes only.
Where a party does not make an initial submission, the Commissioner will not accept a reply to the other parties’ initial submissions.
If you are an intervenor, you may (but are not required to) make an initial submission. Intervenors will not receive copies of other initial submissions and the Commissioner will not consider reply submissions from them.
Parties should not include in their submissions:
any records generated by the office of the Information and Privacy Commissioner during the mediation process;
any records provided by any party related to the mediation process; nor
any records on attempts to settle the issues before the inquiry began;
without obtaining written consent of the other parties to do so. Without such written consent, the office of the Information and Privacy Commissioner will remove any mediation or settlement records from the submissions and return them to the party submitting them. They will not form part of the “record of proceedings” before the Commissioner (that is, he will not consider them during the inquiry).
The office of the Information and Privacy Commissioner accepts written submissions only in the original (that is, only in paper format), although it will accept faxed copies if followed by hard (paper) copies. The office of the Information and Privacy Commissioner will not accept submissions in the form of electronic mail (e-mail).
For more detailed information on making submissions to an inquiry, [click here]
Definitions of Terms
Affidavit: A written statement of facts, the truth of which has either been sworn or affirmed before a Notary Public for the Yukon Territory.
Applicant: A person who makes a formal request to the Territorial Archivist concerning a record that is held by a public body pursuant to the Access to Information and Protection of Privacy Act.
Burden of Proof: A party’s obligation to prove its case to the Commissioner. The party with the burden of proof must convince the Commissioner of its case in order to be successful at the inquiry. The notice of inquiry states which party has the burden of proof for an inquiry.
Evidence: The means used to prove or disprove an allegation; includes documents, physical evidence and testimony given under oath, either oral or written.
In Camera: A submission or part of a submission that a party wishes to provide to the Information and Privacy Commissioner, but is kept from the other parties.
Inquiry: A quasi-judicial process in which the Information and Privacy Commissioner receives representation form parties, third parties and sometimes intervenors, and determines all questions of fact and law in respect of a public body’s or Territorial Archivist’s decision on a request under the Access to Information and Protection of Privacy Act. An inquiry will be scheduled when attempts by the Commissioner’s staff to mediate a resolution have failed or an investigation reveals that there is little chance of settlement. The inquiry must be completed within 90 days of the receipt of the request for review.
Intervenor: A person, group of persons or an organization that has a broader interest in an issue being decided at an inquiry and that is invited by the Information and Privacy Commissioner to make representation at that inquiry. The Commissioner has the authority to decide which persons, groups or organizations will be granted intervenor status in an inquiry and he may consider requests or recommendations from the applicant, public body or a third party.
Party: A person or group of persons with a direct interest in the review, presenting one position during an inquiry; usually the applicant, the public body and any third parties.
Public Body: An entity that is subject to the Access to Information and Protection of Privacy Act. Currently, this includes departments of the Government of Yukon, local bodies and agencies, boards, foundations, commissions and corporations which are agents of the Government of Yukon.
Recommendation: A decision of the Information and Privacy Commissioner which resolves issues raised in an inquiry.
Review: An examination by the staff at the office of the Information and Privacy Commissioner of a public body or Territorial Archivist’s decision, act or failure to act with respect to a request under the Access to Information and Protection of Privacy Act. Reviews are usually initiated at the request of an applicant, but may also follow a request by a third party to review a public body’s decision to disclose the third party’s personal information. A review involves an examination of the decision and the records in question, in addition to mediation to assist the applicant, the public body and any third parties to reach a settlement. A review and any resulting inquiry must be completed within 90 days after the request for review is received by the office of the Information and Privacy Commissioner.
Submission: The argument and evidence in support of a party’s case submitted by the party to the Information and Privacy Commissioner at an inquiry under the Act.
Third Party: Any person, group of persons or organization, other than the applicant (the person who made a request for records) or the public body dealing with the request, whose information is involved in a request.