Yukon public interest watchdog takes gov't to court after refusal to share text messages

The Yukon Public Interest Disclosure Commissioner has taken the territorial government to court after it refused to hand over a portion of employee text messages as part of a wrongdoing investigation.

The refusal, the commissioner alleges, is part of a "trend of non-compliance" that needs court correction.

The government, however, claims the commissioner is seeking "unrestricted power" without oversight.

According to a petition filed to the Yukon Supreme Court on Sept. 5, commissioner Jason Pedlar opened an investigation involving the Environment department last November.

The document doesn't outline the nature of the investigation, but the office of the Public Interest Disclosure Commissioner (PIDC) is an independent entity with the authority to investigate allegations of wrongdoing within public bodies, such as mismanagement of government funds or reprisal against whistleblowers.

Pedlar issued a "notice to produce records" to the government as part of the investigation, including for text messages dated between Jan. 1, 2023 and March 31, 2023 that were stored on the cell phones of four employees.

The department only provided a portion of the texts. The petition says Pedlar sent a follow-up "demand letter," to which the Justice department responded with a letter "refusing" to share the rest of the messages because it believed they weren't relevant to the investigation. Pedlar then met with the deputy and assistant deputy justice ministers to "negotiate" the release of the remaining texts and later issued a production order, but the petition says that to date, the government has still "refused" to provide them.

Commissioner says he's 'left with no recourse'

Both the PIDC office and the Yukon government declined to comment on the case, citing the ongoing court process.

However, Pedlar, who also holds the role of Yukon Ombudsman, wrote in an affidavit accompanying the petition that his offices have had at least five other investigations over the past several years that have been affected by the government refusing to hand over records.

"Such withholding by the Department of Justice has caused significant hurdles and considerable delays in said investigations," the affidavit reads.

"Having encountered repeated resistance to production I am left with no recourse other than to bring a petition seeking production of those records."

The petition asks for a court order or mandatory injunction that would require the government to hand over the remaining texts. It also asks for a series of declarations, including that the PIDC and ombudsman's offices are "entitled to determine if information is relevant to their own investigation" and that asserting a record isn't relevant to an investigation "is not a lawful justification or excuse to intentionally to fail to comply with a lawful requirement of" the PIDC.

The government, in a reply filed Sept. 18, opposes the granting of the declarations "because they are wrong in law" and is asking for the case to be struck.

"The ombudsman and the commissioner take the position that they and they alone are entitled to determine if a record or information is relevant to one of their investigations," the reply says.

"This interpretation would give the ombudsman and the commissioner an unrestricted power to order any person to produce any record or disclose any information without allowing that person any legal right to resist that order."

The reply argues that there must be a "limit to the legal authority" of the offices, and that resolution of disputes over the relevance of records "cannot lie in the hands of the commissioner or the ombudsman alone."

Instead, the government argues, those disputes "ought to be resolved by this court" the same way it would handle disputes over subpoenas in other cases.

The case has yet to be heard by a judge.