Yukon privacy commissioner recommends environment department release muskox data

Yukon's privacy commissioner said the territory's environment department was wrong to withhold data on muskox locations in the Yukon, and is recommending it now turn over the information.

In a Wednesday release, Diane McLeod-McKay said the department was "not authorized" to withhold the data over fears it would be harmful to the animal.

"Although my investigation substantiated that muskox are ranked as critically imperilled and threatened or vulnerable in the Yukon, that is not enough to justify refusing to disclose this information," McLeod-McKay said in the release.

"The department must also establish that disclosure of the information could reasonably be expected to result in probable damage to or interference with the conservation of muskox. In my view, the department failed in this regard."

On Nov. 25, 2019, an unnamed applicant requested all collar relocation data for muskox in the Yukon from Jan. 1, 1980 to the present date.

The department refused the request, in part by citing sub-section 21 (b) of the Access to Information and Protection of Privacy Act, which prevents the disclosure of information that would be harmful to the conservation of species "that is endangered, threatened or vulnerable in the Yukon."

The Yukon government lists muskox as a species that's critically imperilled "due to very restricted range, very few populations or occurrences, very steep declines, severe threats, or other factors."

The department also cited three other sections, including how disclosure of the information would be harmful to intergovernmental relations or negotiations with First Nations, harmful to the financial or economic interests of a public body, and harmful to business interests of a third party involving trade secrets.

The applicant then requested the territory's Information and Privacy Commissioner (IPC) review the matter.

A meeting was held in January 2020 to settle the matter, when an investigator asked the department to clarify which provisions applied to which information — because the records were refused in full, it was unclear which exceptions applied to the information requested, or if all them did.

In March 2020, the department withdrew three of its reasons for not disclosing but maintained the reason it cited in section 21 (b).

The IPC then conducted an inquiry.

It found that locations of muskox in the territory can generally be determined from information that is already publicly available, because it's shared online by tourists, photographers, researchers and students of wildlife.

Furthermore, the inquiry found the range of muskox in the Yukon is on the North Slope, "the farthest northern region of the territory, and one of the world's most severe environments, where there are no nearby roads or towns," according to Wednesday's news release.

It also noted the only hunting of the animal is by Inuvialuit harvesters, which is set out in a multi-government conservation framework.

"Given this, the evidence provided by the department does not establish that disclosing the information to the applicant could reasonably be expected to cause probable damage or interference with the conservation of muskox in the Yukon," McLeod-McKay said.

"In addition, I want to note that the department did not decide whether to accept the recommendation by the deadline required. In the letter received from the department, it cited the need to do consultation prior to making its decision.

"The failure by the department to provide its decision by the deadline means it is deemed by the ATIPP Act to have refused the recommendation. This is the second time in the last year that the Department of Environment has been in deemed refusal of recommendations I made in an inquiry report, which is disappointing."

McLeod-McKay is now requesting the department to release the records within 30 days of receiving the report from the privacy commissioner.

If it refuses, the commissioner notes the applicant has the right to appeal to the Yukon Supreme Court.