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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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