‘Benefits who?’: Information denial questioned by privacy commissioner

One family is trying to heal, but believes to do that, it needs information the Saskatchewan government is keeping under wraps.

On Truth and Reconciliation Day last year, Sept. 30, a person who wishes to remain anonymous made a formal Access to Information request under the Freedom of Information and Protection of Privacy (FOIP) Act.

They were asked for information about their now-dead Metis mother who was involved with Saskatchewan Social Services as a youth and was eventually sent to a reform school in Winnipeg.

The applicant said their parent experienced institutionalization at the school. They had spoken to current staff at the school who suggested they contact Social Services to find out more about their experience and why they were sent to the school

In their application, the person said their mother’s time “as a ward of the state” impacted her and her family significantly, and they believed more information about what happened would let their family heal.

“The recent increased public discourse and understanding around the impact of residential schools, sixties scoop, and the treatment of First Nations and Metis children in care strengthened my resolve to seek out information,” read the application.

“When considering the benefits of disclosure, please consider my [Parent’s] institutionalization impacted [Parent], as well as myself and my siblings significantly. We are seeking to know as much about this time of [Parent’s] life as possible in order to value [Parent’s] legacy, heal as a family, and honour the goals of truth and reconciliation.”

But the application was denied, just like the applicant’s previous, similar application. The ministry simply cited Section 74 of the Child and Family Services Act (CFSA), which talks about the duty of confidentiality and supersedes FOIP.

The ministry said it did not have the legal authority to release the records.

The applicant took the denial to Saskatchewan’s Information and Privacy Commissioner, Ronald Kruzeniski, for review. And in his recent decision, the commissioner said while the legislation was applied correctly, he also said the legislation should be changed and the minister should take another look at this particular application.

In the CFSA, there is a provision that information can be disclosed if the minister decides to authorize it.

“In such instances, the benefit of the disclosure must clearly outweigh any invasion of privacy that could result from the release,” reads the act.

It also refers to another section that has procedures for different scenarios but doesn’t include procedures for FOIP requests.

In their request for review, the applicant pointed out some concerns to the commissioner, in particular that Social Services believed the benefit of confidentiality outweighed the benefit of sharing the information.

“My question is benefits who? My deceased [Parent]? My grandparents? The Social Worker my [Parent] said made advances on [Parent]? Or does it benefit the ministry itself because of the manner [Parent] may have been placed? I feel they hold all the power and there is no checks and balances regarding this denial for access to information. There’s very little, to no explanation other than privacy with this blanket denial,” wrote the applicant.

In their request for review, the applicant pointed out there can be no Truth and Reconciliation without truth.

“I just finally want to know the truth around this matter because it affected my [Parent], me and our family,” the applicant said. “Therefore, I feel it is our truth and our story to understand.”

Normally in such cases, the commissioner is given access to the records in question to look at them and see if the legislation was properly applied. But because the legislation says Child and Family Service is not subject to FOIP, Social Services did not give the commissioner any access — a problem the commissioner has faced several times over the years.

“In my view, the Applicant’s experience is evidence of a system that does not seem to have appropriate checks and balances in place to ensure that privacy or confidentiality is not treated as an absolute when in fact other legal instruments such as FOIP already have this built in,” Kruzeniski wrote in his decision.

“The lack of my office’s ability to conduct a neutral and independent review of access to child and family service program files allows Social Services to operate in secret and be accountable to no one. It allows for an arbitrary yes or no answer by Social Services. It may also allow a coverup of potential past actions.”

While the commissioner has wider concerns about the CFSA being exempt from FOIP legislation, and recommended government repeal that part of the FOIP Act, he’s also concerned about this case and believes the minister himself needs to take another look at it.

“I think in this time of people seeking out truth, the ministry should be much more flexible and consider these types of requests,” said Kruzeniski, noting that can apply to Indigenous peoples impacted by the ’60s Scoop and residential schools, but it could apply to any child taken into custody by Social Services.

“Their parent dies (and) they’re now searching for the history as to what happened to them. Their parent is dead, their parent can’t provide them that information anymore and Social Services has information that certainly could help for healing or reconciliation or whatever the need may be at the time.”

The commissioner said a blanket no is an unacceptable approach.

His third recommendation in this case is for Social Services to develop and release a policy as to when information in such cases will be released; he said it would be helpful for people wanting to make such a request to know what the rules are.

The NDP agrees

The applicant also went to the Saskatchewan NDP’s critic for Social Services, Meara Conway, when their request was denied.

Conway sent a letter to the then-minister, but it didn’t help.

Looking at the privacy commissioner’s report on the situation, Conway said it could not be more damning.

“I’m very concerned as the critic. This has been something that the privacy commissioner brought to the ministry’s attention as early as five years ago and there’s been no movement on addressing this despite the fact that a lot of the documents will have to do with ’60s Scoop survivors (and) residential school survivors,” said Conway.

The request had gone to then-Social Services Minister Lori Carr, but there’s a new minister in place now — Gene Makowsky — and Conway is hopeful he will follow the commissioner’s recommendations.

“With the discovery of unmarked graves and the government’s apology for residential schools (and) their lip service to the fact that they take Truth and Reconciliation seriously, it is incumbent upon them to make these changes,” said Conway.

If a person is denied information, their only real recourse is going to court. However, that can be expensive and time-consuming, and Conway pointed out that option is unrealistic and too expensive for many people; Those for whom Social Services has records are often among the most vulnerable in society.

This applicant is particularly motivated, but Conway wondered how many people get a blanket ‘no’ and then just give up.

The new minister

Makowsky has asked the ministry to take another look at this application and is hoping to get an answer to the applicant as soon as is “reasonably possible.”

He said the ministry does get a number of applications of this sort, and information is given out in some cases.

“It’s different with every case, on a case-by-case basis,” said Makowsky.

When asked about the policy around what can be released and when, Makowsky said the ministry will look at applications, legal counsel will look at them as well, and then it’ll be decided what can or can’t be released. They all work around Section 74 of the CFSA. Some cases may go to the minister for review but Makowsky said he wouldn’t review all of them.

“I understand where people are coming from with wanting to get information and truth and wanting to know their certain situation from the past. We understand that but, as I said before, it’s very important that we balance people’s rights to their information, their need to protect their privacy, and confidentiality of others as well,” explained Makowsky.

Makowsky also pointed out the previous minister had committed to a review of the CFSA which is ongoing.

“These things take time and so I can’t put a date on it, of course, but we’re looking at it very closely,” he said.

The FOIP Act, the legislation which the privacy commissioner recommended be changed, would be under the Ministry of Justice, according to Makowsky. He said Social Services doesn’t have a recommendation on that right now, and if it comes up in the review of the CFSA, he said that’s for another day.

Makowsky said the ministry is taking the recommendations of the privacy commissioner very seriously.

“It’s something that we’re hearing about and we are looking at it very closely and we appreciate the work the privacy commissioner does on this — not only this but other areas of our province,” said Makowsky.

The commissioner was happy to hear a review of the legislation was happening but said he hadn’t been consulted on it at all, though he’d very much like to give his input.

Editor’s note: this story has been updated to clarify the allegations around the applicant’s mother’s time in social services and the reform school.