N.W.T. resident wants to enforce ATIPP order in court but can't afford legal fees

An N.W.T. resident who has been waiting eight months for an access to information request says he wants to bring the territory to court — but he can't afford the legal costs of doing so.

Ashley Geraghty submitted access to information and privacy (ATIPP) requests in April 2023. The requests are to access documents related to whether senior government officials complied with union and Workers' Safety and Compensation Commission policies, according to emails shared with CBC News.

Under the territory's access to information laws, individuals can ask for copies of government records ranging from emails, meeting minutes, records about deceased family members, or any other documents held by government bodies.

But the access and privacy office missed its initial 40-day deadline and did not comply with a subsequent order from the N.W.T.'s information and privacy commissioner to provide the documents to Geraghty "without further delay."

The territorial office said a backlog was delaying Geraghty's request, according to the commissioner's order from July.

The information and privacy commissioner is an independent officer acting as a watchdog for privacy issues and information requests in the N.W.T.

In November, Geraghty filed the commissioner's order in the N.W.T. Supreme Court, but after consulting a law firm in Alberta, Geraghty said he can't afford to pay the thousands of dollars in legal fees from his own pocket.

"It is ridiculous to have to pay a lawyer to force government to not be in contempt of court," Geraghty said in an email. "When it's just the average citizen trying to hold the bureaucracy accountable for wrongdoing, thousands of dollars in lawyer fees seems unreasonable."

Geraghty declined an interview because of "ongoing confidential processes," but provided CBC with an email response.

To avoid lawyer fees, Geraghty said he is trying to resolve his outstanding ATIPPs through the legislature instead.

'Ongoing issue' needs attention, MLA says 

According to emails shared with CBC News, Geraghty is calling for a third party review of his ATIPP requests, outside of the commissioner's review, and has contacted various N.W.T. MLAs for help.

Range Lake MLA Kieron Testart says most citizens don't have the resources to go through the NWT Supreme Court and says he would like to see more staff working on ATIPP requests. (Julie Plourde/Radio-Canada)

"It becomes a real question of integrity and accountability for this new premier and cabinet," he said.

Range Lake MLA Kieron Testart is among the politicians Geraghty has contacted.

Testart says most citizens don't have the resources to bring unfulfilled ATIPP orders to court and that the system needs to improve so they don't have to hire a lawyer to get an access to information request — itself a fundamental right, he said.

"The [territorial government] has never had a good track record with access to information and with the protection of privacy for that matter and this is an ongoing issue that really needs the full attention of this assembly," he said.

But Testart says he doesn't think a review is the best way forward since it's already well known that a lack of resources are to blame for delayed ATIPP responses.

In his last two annual reports, information and privacy commissioner Andrew Fox noted that "the number of trained personnel in the APO is insufficient" and that "capacity remains an issue."

The department of justice, which oversees the APO, said that the APO is currently operating on a team of three staff with two vacant positions.

Testart says he would like to see more government resources for the APO and says he's urging cabinet to do so. He said there may also be some consideration to whether current deadline requirements are realistic.

He says he is working with the Premier to improve the system.

Premier says review is coming

Premier R.J. Simpson says that everyone has to follow the law, even the government.

"So when there's an order in place, we do do our best to fulfill that," he said.

But, he acknowledged that isn't always happening when it comes to the territory's ATIPP regime. Simpson said the backlogs are "growing pains" from new ATIPP legislation that came into effect in 2021. Some of those changes included giving the information and privacy commissioner the authority to order the government to grant documents to an applicant and creating the designated APO.

Simpson said a review of the new legislation needs to be completed by summer 2025, but he hopes it can happen sooner than that. He said that any actual changes to the legislation will have to come out of the review, but suggested there could be ways of streamlining the request process so that applicants with simple requests aren't stuck waiting for documents that first require staff to wade through 10,000 pages.

In the meantime, Simpson said the government is working better staff the office handling ATIPP requests.