September
19, 2006
Special
Case Review and the Internet
In
the case
of the Victoria foster parent whose home was so filthy
that the Ministry had to remove two foster children, issues
were raised regarding freedom of information and protection
of privacy, the Ministry's ability to protect children,
and the Ministry's treatment of foster parents.
On
September 5, 2006, I wrote to the Freedom of Information
and Protection of Privacy Commissioner regarding the Ministry
of Children and Family Development's release of a "special
case review" of the foster parent. The Ministry had
posted
a note to its website saying that copies of the review
could be requested through public affairs bureau communications,
but the Freedom of Information and Protection of Privacy
Act prohibited release of the review by posting it on
the Internet. I thought that note had since disappeared,
but it was just moved from the Ministry's top page to
the "about
us" section of the Ministry's site.
I
wondered how a document could be distributed by Canada
Post but not via the Internet. It turns out that in matters
of privacy, such distinctions can be drawn because personal
information cannot be disseminated internationally. A
Senior Portfolio Officer in the Commissioner's Office
responded to my letter saying:
"As
you may know, by virtue of s. 33 of the Freedom of lnformation
and Protection of Privacy Act (the Act), public bodies
must ensure that personal information in their custody
or control is disclosed only as permitted under section
33.1 or 33.2. There is an important distinction between
section 33.1 and 33.2. That is, if the disclosure of
personal information is permitted under s. 33.1, the
public body may disclose the information inside or outside
of Canada. If, however, the authority for the disclosure
can only be found in s. 33.2, then the disclosure of
personal information can only occur inside Canada."
"A
disclosure on a website is considered to be a disclosure
outside of Canada because once posted on the internet,
the information can be accessed outside of Canada. Therefore,
in order for MCFD to post its Special Case Review on
a website, it would have to rely upon s. 33.1 as authority
for the disclosure. I am advised by MCFD staff that
the Ministry relies upon s. 33.2(a) as its authority
for the disclosure of the Special Case Review. That
being the case, MCFD is only permitted to disclose the
Special Case Review within Canada. I have not provided
you with any case citations as the reason for this opinion
is set out clearly in the wording of the Act."
That
leaves open the question of whether there is anything
that is any more personal in the special case review than
there is in any of the various reviews that the Ministry
has posted to its website. Shouldn't the government be
able to "white out" personal information, and
release the edited document which is then dealing with
matters of public concern?
The
introduction to the operational
audit section of the Ministry's website says:
"Audits
are subject to the removal of personal or confidential
information as stated in the Freedom of Information and
Protection of Privacy Act. The removed information appears
as white space."
Of
course, operational audits could have sections removed
for reasons allowed in sections of the Act other than
Section 33; however, there are precedents on the Ministry's
website of positing reports that deal with specific cases.
While only the initials "S.C." are used in the
report at http://www.mcf.gov.bc.ca/about_us/pdf/summary_dcr_sc.pdf,
anyone who has followed the news knows the review is about
Sherry Charlie. The Office of the Freedom of Information
and Protection of Privacy Commissioner expressed concern
that even if personal information were whited out from
the special review of the Victoria foster parent, privacy
would be violated because her name was prominent in the
news. Sherry Charlie's name was much more prominent but
that didn't stop the Ministry from posting her case review.
It
should not be up to a Ministry to unilaterally declare
that a document is released under Section 33 of the Act
as opposed to having private information removed and the
resulting document posted to the web in the interest of
freedom of information. Hopefully the Freedom of Information
and Protection of Privacy Commissioner will further review
this matter and ultimately agree that the Ministry could
have made the report available on the Internet with appropriate
sections whited out. The letter I received from the Commissioner's
Office concluded by referring to these inconsistencies
and saying: "We are making further inquires with
the Ministry regarding this difference." The Commissioner
needs to consider whether the Ministry interest stems
from protecting privacy or whether it really stems from
protecting its political backside.
Unfortunately,
the freedom of information issue is the least important
of the issues raised by the case of this foster parent.
The far more important issue is how the Ministry works
to support and retain foster parents. Its behaviour in
this case sent a message that will not help in foster
parent recruitment.
September
9, 2006
Disposable
Foster Parents
In
June a
landlord invited CTV into his tenant's home and exposed
filthy conditions that two foster children were living in.
The government responded by promising an investigation and
a report on the foster home. The report, dated August 3rd,
was released on the eve of Labour Day to selected media
outlets. A note dated September 1st on the website for the
Ministry of Children and Family Development said that the
Ministry was acting on recommendations in the report, and
it provided a link to a statement from Minister Tom Christensen
which concluded by saying that a copy of the report would
be sent to anyone who phoned and asked for it but: "The
Freedom of Information and Privacy Protection Act limits
the Ministry's ability to post the Special Case Review on
this site." I requesed and received a copy of the report,
and I have written the Freedom of Information and Protection
of Privacy Commissioner asking whether he agrees with the
Ministry and whether he has made any rulings that allow
information to be released via Canada Post but not via a
government website. You can see a copy
of that letter and the Minister's statement by clicking
here; all traces of the Minister's statement and the
commentary on the website have since disappeared from the
government website.
This
troubling case is more than just one more failure in the
Ministry of Children and Family Development. It raises issues
regarding freedom of information and protection of privacy,
issues regarding the Ministry's ability to protect children,
and issues regarding the Ministry's treatment of foster
parents. It deserves more attention than the one or two
days it got in a busy news cycle. Governments frequently
feel that they can weather any bad news that lasts less
than a week since the story won't linger in the minds of
voters and it won't affect voting behaviour.
The
issue with respect to freedom of information is whether
the government can restrict how it disseminates information
under the Act. Does the Freedom of Information and Protection
of Privacy Act allow the government to distribute copies
of a report by Canada Post to anyone who phones in a request
while restricting the government's ability to post the report
on a website? In the unlikely event that it does, and we'll
wait to see what the Commissioner has to say, what happens
if I post the report to my website since I scanned the paper
copy I received and converted it to a pdf document?
At least
as important as the freedom of information issues raised
by this case, are the protection of privacy issues. The
foster parent appears to have had her rights trampled when
the landlord invited TV cameras into her home. The Ministry's
Special Report stated (p. 13):
"There
is evidence that the condition of G.J.'s home deteriorated
from November 2005 to June 2006 and fell well below ministry
standards during the last four to six weeks she was a foster
parent. The conditions found on June 13 would have presented
a health hazard to children if left in that state."
The
invasion of the foster parent's home may be rationalized
by that finding, but a simple complaint to the Ministry
should have produced the same result. It took the public
embarrassment of the Ministry and an apparent violation
of the Residential Tenancy Act and the foster parent's privacy
rights in order to pressure the Ministry to properly protect
the children in its care. What other circumstances justify
vigilante actions like this?
The
foster parent was first approved as a caregiver on July
1, 1999, and received her first placement in September 1999.
From the report it appears that she functioned to the satisfaction
of the Ministry until November 2005, and they didn't know
about any problems until June 2006. A normal employer in
circumstances like this would be expected to take reasonable
steps to help a troubled employee. What circumstances led
a previously successful foster parent to allow her home
to turn into a stinking pigsty? Obviously the government
had to remove the foster children, but doesn't it also have
some obligation to "G.J." or can it wipe its hands
of her? The Ministry's Special Report was produced as
a result of embarrassment caused by the CTV story; it is
an exercise in damage control. References in the report
that could identify foster children are appropriately blanked
out, but nothing is done to protect the privacy of the troubled
foster parent. In the version of the report that was mailed
to me, her full name is used and only replaced with the
initials G.J. on the second and subsequent usages. Details
of her seven years of fostering are set out for the public
to see with emphasis on how administratively over-burdened
social workers couldn't conduct Annual Reviews.
The
Special Report states (p. 14):
"The
Resources team leader reports that lack of capacity within
the resource system results in the need to place children
with caregivers beyond their capacity. In June 2006 there
were approximately thirty-five homes in the Victoria area
that were above their capacity, which is approximately three
to five children per home."
The
report also said that in 2005 there were approximately 630
foster homes in the Vancouver Island Region caring for over
1,300 children-in-care at any given time. If 35 with 3 to
5 children are operating "beyond their capacity",
it means that 140 children, or over 10% of all child-in-care
in the Vancouver Island Region are in overcrowded foster
homes. How many of those children are at risk of the breakdown
of a foster parent? The answer in the report is that "there
have not been similar issues with foster parents in the
region". It might have been more honest to say that
because of a lack of resources, it cannot determine if there
are similar issues in the region.
There
is little or no research available that describes how foster
parents compare to the rest of the population with respect
to average incomes, employment opportunities, education,
and housing conditions, to name just a few of the indicators
a researcher might find interesting. A study dated January
2005, conducted for the U.S. Department of Human Services,
titled "Understanding
Foster Parenting: Using Administrative Data to Explore Retention",
noted that foster parents play a central role in the child
welfare system. The study attempted to find what it takes
to keep good foster parents. Its review of the literature
noted that "higher levels of employment and income
are associated with increased likelihood of quitting foster
parenting" and that those who continue with fostering
(from a 1989 study) are likely to earn less than $25,000.
Foster
parents are in a situation where they can be easily exploited
by the Ministry. When other foster parents see how the government
turned on "G.J." so as to do damage control without
expressing concern for what happened that allowed her to
deteriorate to the state her home was in, it sends a message
that it is not supportive.
Neither
the recent Hughes Report, nor the earlier Gove report on
child care in BC and its many supplementary research reports,
say anything about the adequacy of care for children once
they are taken into care. Tragedies draw attention to child
apprehension but not to what happens to children once they
are "in-care". The absence of information on the
characteristics of foster parents in the context of how
to reduce foster home turnover is indicative of a system
that doesn't value one of its most important resources.
The treatment of G.J. reinforces that low valuation.
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