Company successful in ATIPP court case against Yukon gov't after refusal to disclose car accident data

A company that produces vehicle history reports has scored an access-to-information victory against the Yukon government.

A Yukon Supreme Court judge, in a decision last month, ruled that the Department of Highways and Public Works was "unreasonable" in refusing to share vehicle-accident information with VinAudit Canada, despite a recommendation from the territory's information and privacy commissioner to do so.

The case is the first access-to-information reviewto go before a court under the Yukon's new Access to Information and Protection of Privacy (ATIPP) Act, which came into effect in April 2021.

"My client is very happy with the outcome," lawyer Mark Wallace, who represented the company in court, said in an interview.

"I'm glad that the decision came out in a very detailed and reasoned way that will hopefully help avoid companies and the government having to go to court again on this."

In an email, highways and public works spokesperson Krysten Johnson wrote that the department received the court decision "right before the holidays" and is "currently reviewing the ruling and its implications."

"At this time, we will not be commenting on the ruling," she wrote.

VinAudit Canada is an online platform that generates vehicle history reports for customers based on a vehicle's unique identification number. The reports include any accidents the vehicles may have been in information the company gets via access-to-information requests for anonymized accident data to provinces and territories.

The Yukon had previously provided accident information to the company. However, when the company filed another request in September 2021, the Department of Highways and Public works largely denied it.

The department, according to the decision from deputy Justice David Crerar, denied access to 10 of the 15 data fields VinAudit Canada was seeking, and also "wholly redacted" 645 of the 774 pages provided.

The denial and redactions were made based on provisions in the ATIPP Act that prohibits the release of information that would be an "unreasonable invasion of a third party's privacy."

The decision also notes that the little information that was provided was not "in a useable electronic format, or in the original data field delimited format, but in a PDF format less amenable to re-use."

Govt's response 'borders on contempt' for right-to-info, judge says

VinAudit Canada filed a complaint to the Yukon Information and Privacy Commissioner, after which an adjudicator launched an investigation into the denial of access and redactions.

The adjudicator, in June 2022, released a 47-report stating that, following the investigation, he had concluded that the department was not required to withhold the requested information from VinAudit Canada. He also found that the department had "failed in its duty to respond" to the company "openly, accurately, and completely" because it didn't communicate about "an appropriate format or provide it with a copy of the records in electronic format ordinarily held by the respondent and capable of re-use" as required under the ATIPP Act.

The adjudicator, in his report, recommended that the department disclose the redacted records entirely, and in their original format or another format that would allow VinAudit Canada to actually use the information.

However, the Department of Highways and Public Works' deputy minister at the time,Paul McConnell, rejected the recommendations via "four terse paragraphs" stating the department "respectfully" disagrees, Crerar's decision notes in July 2022.

VinAudit Canada filed a petition for judicial review of that decision the next month, the only recourse left to it under the ATIPP Act.

Crerar, in the court decision, wrote that he agreed with the information and privacy commissioner's findings "in their entirety," stating that the data sought by the company was not private or "personal information" that needed to be withheld and that it must be provided to VinAudit Canada in a "usable format."

The judge ultimately found that the department's rejection of the information and privacy commissioner's recommendations was unreasonable on several grounds.

Among them was that the department provided "no reasoning or analysis" for its rejection "beyond a reciting of its earlier position," despite the extensive analysis in the information and privacy commissioner's report.

"The Decision fails to provide a transparent, intelligible, justifiable, and reasonable basis for rejecting the contents of that Report: it largely ignores them," Crerar also wrote.

"The [government]'s perfunctory and conclusory four-paragraph response to the thorough 47-page Report borders on contempt towards the presumptive right of the Yukon public to government information, towards the statutory regime designed to facilitate that access, and towards the Office of the Commissioner statutorily entrusted to uphold that legislation and realise its goals."

The judge also found that the department's decision lacked transparency, according to the court it failed to indicate "which of the redacted information would identify personal information, which of the personal information would be unreasonably invaded, or how, or why."

"This flies in the face of specific legislative requirements that the respondent identify a 'specific exception' to disclosure and provide reasons for each of its rejections of the investigation report recommendations," Crerar wrote.

Crerar granted VinAudit Canada's request for an order that the department completely disclose the unredacted records it requested in a usable format, and also ruled that the company was entitled to legal costs.