Social Development told to respect information laws
Information commissioner Anne Bertrand recommends department respect its legal obligations to openness
Anne Bertrand, the information commissioner, says the department did not fulfil its obligations under the law when it refused to disclose whether it was investigating complaints of verbal and emotional abuse at a Saint John special care home for physically and intellectually disabled adults.
"The fact that an investigation was ongoing should not have been protected," says Bertrand.
"And this is a recommendation from us based on a very acute analysis."
Bertrand's report found the department has indicated it wished to continue to refuse access to some types of information her office says should be disclosed.
Bertrand issued the report on April 8 in response to a 2014 complaint by CBC News over Social Development's handling of a right to information request.
Saint John facility investigated
The request sought records on a departmental investigation into a Saint John special care home.
A CBC News investigation was examining complaints made by former employees of the home to the provincial government about the care of residents in the facility.
The report says the department takes "an overly broad interpretation of the confidentiality provisions of the Family Services Act" when it comes to disclosing whether or not an investigation is underway.
Her report was issued because the commissioner found "that the public body has not complied with the act and is not prepared to resolve the matter by correcting this compliance issue."
There must be transparency.- Michael Camp
Michael Camp, the acting director of the Journalism and Communications program at St. Thomas University, says the public needs to play a role in making sure that special care homes are up to standard, precisely due to the high degree of vulnerability of the citizens they shelter.
"These are the people who most need oversight," says Camp.
Bertrand's report says during an attempt at an informal resolution of the complaint, the department "was unwilling to provide all of the information to which the applicant was entitled to receive, including explanations for deficiencies in the department's initial processing of the applicant's request."
"In particular, the department would not indicate that some of the requested information should not have been refused in the first place and it appeared to us from the wording used that the department wanted to reserve the right to refuse access to the same type of information in future access to information cases."
Bertrand acknowledged the department's right to disagree with her office's interpretation of the act, but recommends the department release records relevant to its investigation into the special care home to CBC News.
Department is not commenting
The department has so far not contacted CBC News or produced those records. It did not respond to an email on Tuesday afternoon asking for its response to the report.
According to a recent Telegraph-Journal article about the special care home, the department again this week said it could not release investigation details because of privacy legislation and the Family Services Act.
It's a statement that conflicts with the commissioner's findings.
It's also inconsistent with the department's eventual decision to release its recommendations for corrective actions in the home, following the conclusion of its investigation.
That information was only released to the CBC last year after repeated requests through the department's media relations office.
The commissioner found that did not relieve the department of its initial obligation when the formal information request was first presented.
The commissioner's report states the department should be releasing records to CBC News:
- A letter that was sent to the home operator, summarizing the department's concerns, violations of standards and its findings and recommendations for corrective measures, with the personal information of the home operator redacted.
- An internal briefing note recommending an investigation be undertaken, with the identities of the special care home employees redacted
The department is supposed to respond within 15 days. A non-response is interpreted as a decision by the department not to accept the commissioner's recommendations.
The commissioner also took issue with the department's failure to seek and gather records in response to the CBC News request.
"They must seek out, search out, all of the information that's relevant to the request and then decide, then have an examination as to what should be protected and not. Not the other way around," says Bertrand.
Vincent Gogolek, a government transparency advocate, says it's unfortunate that New Brunswick's information commissioner lacks the power to make an order.
"Unlike our commissioner here in B.C. and a number of other commissioners, [Bertrand] is not able to order the ministry to hand over the documents, or at least, parts of them."
Gogolek says information commissioners are independent third parties with expertise that shouldn't be ignored.
"It's the people's information," he says.
This year, CBC News started investigating the closure of two foster care homes for reasons of abuse or neglect.
Social Development refused to confirm whether the foster parents in those homes faced criminal investigations. The department cited confidentiality clauses under the Family Services Act.
The department has not responded to multiple requests over recent months to explain its interpretation of the Act with respect to this refusal.