The Department of Education in Nunavut has come under scrutiny following a review by the Information and Privacy Commissioner, who found errors in the redaction of personal information in response to an access to information request filed by an education employee. The Commissioner also raised concerns about senior management’s use of the messaging app WhatsApp to conduct departmental business, recommending that its use be discontinued.
The case involves a government employee whose relationship with the Department of Education’s senior management had deteriorated, leading them to take a leave of absence. The employee then filed a comprehensive access request in January 2024, seeking records related to their employment from multiple individuals and divisions within the department. The request covered “all forms of communication” and spanned a period beginning in July 2023.
The Department of Education struggled with the size and scope of the request, ultimately disclosing close to 1,500 pages of records over several months, with significant redactions under sections 21 and 23 of the Access to Information and Protection of Privacy Act (ATIPPA). Section 23 of the ATIPPA allows for the redaction of third-party personal information when its disclosure would constitute an unreasonable invasion of privacy. Section 21 permits redaction when disclosure could reasonably be expected to endanger the health or safety of an individual.
However, the Commissioner found that many of the redactions under section 23 were unnecessary, as the applicant was either the sender or recipient of the records in question. “In the circumstances, most of the section 23 redactions in the disclosure packages serve no purpose. The Applicant was either the sender or receiver of many of these records, and so already knows what has been redacted,” the Commissioner stated.
The Commissioner also questioned the application of section 21, particularly regarding a redacted message that the department claimed could endanger the applicant’s safety. The Commissioner found this claim unsubstantiated, stating, “I do not see how section 21 could possibly apply to it. Certainly the message contains a frank statement, but there is no exemption in the ATIPPA for frankness.”
Commentary on WhatsApp
The review highlighted a broader issue with the Department of Education’s use of WhatsApp to conduct official business, a practice the Commissioner strongly discouraged. The Commissioner expressed concerns about the lack of transparency and accountability associated with using a third-party messaging app, noting that “WhatsApp messages do not go through GN servers. They are not accessible to the GN if the employee dies, resigns, goes on leave, or for any other reason is unwilling or unable to cooperate.”
The use of WhatsApp complicates the records management process and undermines the integrity of the ATIPPA process, which relies on good faith from government employees. The Commissioner recommended that the Department of Education “discontinue the use of WhatsApp by senior management” and instead use Microsoft Teams, a messaging app that is supported by the government and ensures that communications remain accessible and can be properly archived.
Search for records insufficient
The review also addressed the adequacy of the department’s search for records in response to the employee’s request. While the Commissioner concluded that the department’s search was generally reasonable, they noted that the use of a name search as the primary method for locating responsive records was insufficient, particularly when searching messaging apps like WhatsApp.
The Commissioner recommended a new search of senior management’s WhatsApp messages, to be conducted by someone other than the employees themselves, to ensure all relevant records are identified and disclosed.
The ruling highlights the challenges faced by government employees seeking access to records related to their employment, particularly in cases where relationships with management have broken down. The Commissioner acknowledged that the ATIPPA is often used as a “proxy battleground” for human-resources issues within the Government of Nunavut, but emphasized that the act is a “blunt instrument” for addressing such workplace disputes.
Ultimately, the Commissioner recommended further disclosure of certain records and urged the Department of Education to improve its records management practices, particularly by abandoning the use of unofficial communication channels like WhatsApp. The Department of Education has been advised to implement these recommendations to ensure compliance with ATIPPA and maintain the integrity of the public body’s operations.
For more information, see Department of Education (Re), 2024 NUIPC 19 (CanLII).
