When privacy and accountability collide (Dec 2005)

Privacy legislation has shut down public accountability in this province and clear across the country.

The issue has been festering like a boil on the back of journalists for some time now. And last week, in a fit of frustration, Ted Blades of CBC Radio ‘On the Go’ stuck a pin in it.

It was a textbook example of what typically happens in cases like this. The reporter presents the person who is accountable – either a public servant or minister – with powerful testimony, usually from a family member, detailing a failure in the system and the painful consequences for those involved.

However, rather than explain what went wrong, the person responsible says, “We don’t comment on specific cases for privacy reasons.”

In this instance, it was the removal of a four-year-old Innu boy from the home of his foster parents, Paul and Jane Tulk, to be sent back to his home community of Sheshatshiu. The reason for the move – to enable the boy to grow up in his own culture – was valid, but it was handled in a hamfisted manner that was cruel to the foster parents and probably traumatic for the boy.

When Ted Blades tried to question Ivy Burt, Director of Child and Youth Services for the province, he received the standard reply: “I can’t speak to the specifics of this case.” He continued to probe, growing increasingly frustrated by her steadfast refusal to comment.

When he raised the foster parents’ complaint that the social workers arrived to take the child without a child safety seat, the reply was, “I can’t comment specifically on that specific case or answer that question.”

Now, is it just me, or does that sound like nonsense to you? Rather than assure us that the child’s basic safety needs were met, which in no way compromises privacy, it would seem that she dodged a potentially embarrassing question by hiding behind the cloak of confidentiality.

“The Tulks are willing to talk about this and clearly have concerns – why can’t you talk to the specifics of this case?” Blades asked. Again, same answer: “Not our policy to speak about specific children in the media…”

“As the media, we run into this every time we want to do a story involving Social Services,” Blades continued. “But that leaves a lot of our listeners frustrated. It means there is a sheet that you can hide behind; that the department, the people in the field and you are not accountable. If you can’t talk about it in public, how does accountability happen?”

Ms. Burt’s answer was that accountability can happen internally (as it did, no doubt, when Social Services was managing the Mount Cashel file) and through the office of the Child and Youth Advocate, which is a fair point. (I tried to interview Darlene Neville, the province’s Child and Youth Advocate, but we played phone tag and failed to connect.)

Ryan Cleary is Managing Editor of The Independent and a seasoned investigative reporter. He agrees that privacy concerns are stifling public accountability. “I have run into that on numerous occasions, where you have a specific story, you go to a department for comment on that story and they will say ‘No we do not respond to individual cases’ and then talk in generalities. It’s a way out. When they don’t comment on a specific story, it takes away from the legitimacy of the story. It takes away from how hard-hitting the story is. It’s kind of left hanging.

“At the same time, they do have a point,” Cleary added, acknowledging that privacy is a right that must be addressed. However, he agreed that the legislation needs to be revisited and adjustments made to increase public accountability.

“If you have a person who comes out on the record, they agree to have their name publicized and have their picture taken… if they are willing to go that far, well then the department should meet you the other half of the way and comment on specific cases. Now if the person doesn’t want to use their name, wants to remain anonymous, then why should the department comment?”

Rod Etheridge, a producer / reporter with CBC Radio, also ran into this wall last week. He was reporting on the case of a five-year-old child who was bullied and sexually assaulted by another child at a school in St. John’s. Etheridge said he understood the child’s right to privacy, but was puzzled by the refusal of Darin King of the Eastern School District to discuss how the case was handled. For example, the mother claimed that only a handful of teachers had been informed of the situation, and she felt that every teacher in the school should be made aware of it.

“He said it’s a private, confidential issue and was very disappointed that CBC would talk about it on the public airwaves,” Etheridge said. “I said that this woman gave us permission to talk about it, and he still argued that it was not a public issue. I asked if he would inform the teachers or the parents (of what happened), and he said they had told the people who needed to know, and the agencies involved. His argument was this: If there are 10 or 15 kids involved in this incident, how would you feel if you were a parent and heard your son talked about on the radio? I said ‘let me challenge that’ and said ‘what if you were a parent of a kid in the school – wouldn’t you want to know that this was going on?’ But he maintained that it’s a private, confidential issue, even if the mother gives permission for it to be discussed.”

Etheridge said the director would not disclose whether or not other teachers had been informed or if Family Services had been called in. “I don’t understand why all the people who needed to know – including the parents of children in that school – wouldn’t be informed. How do you make the decision of who does and doesn’t get told? It was nothing – just no comment at all on that case.”

Kim Kielley of The Express has been reporting on – make that attempting to report on – the case of the person with schizophrenia who is living in the woods on the fringes of Mount Pearl. It’s a difficult case because the man is refusing assistance, and likely will continue to do so because he is not receiving medication.

“For privacy reasons the department refuses to speak about this case, yet this guy is out in the woods, unmedicated and the situation is not being resolved… He could be dead by now.”

Kielley said she is receiving no information on the case from provincial officials, who refuse to comment for privacy reasons. “The only reason I know he has schizophrenia and is paranoid is because I had to call Alberta and track his brother down. And that’s outside of the province. That’s unacceptable. The department has an obligation to look after this person and even when they’re confronted in the House they still say they can’t discuss the case.”

It’s complicated because the man in the woods is not willing to discuss his case. In order to save his life, he will need to be arrested against his will (which is a possibility, since the man allegedly threatened to injure a rabbit hunter). Meanwhile, the bureaucratic logjam continues and the situation is unresolved. Public debate on this issue would likely move government to action before the individual freezes to death in the woods. Which begs the question: will they refuse to comment on specific cases even after the individual has died? This is not a minor issue. Sometimes the question of privacy versus accountability is a matter of life and death.

“From my standpoint it’s frustrating as hell because I am trying to get information and I almost get the impression that different departments are hiding behind the legislation,” Kielley said. “They say we can’t discuss individual cases because of privacy, but if you don’t discuss it then really there’s nothing to talk about… Obviously the legislation has to change.”

Kielley says she doubts that accountable individuals have actually read the privacy legislation. “Really, I don’t think they know enough about it. I don’t know enough about it. And the people who are using it as an excuse, I don’t think are very well versed in it.”

One person who is familiar with the legislation is Russell Wangersky, Managing Editor of The Telegram. Wangersky’s opinion is that two different pieces of legislation – at the federal and provincial levels – work together to severely constrain the ability of those accountable to comment on specific issues. In other words, they are justified in not commenting.

“The federal privacy legislation is pretty darn strict and there’s the privacy component to the new ATIPA (provincial Access to Information and Privacy Act) as well,” he said, agreeing that there is no ‘wiggle room’ at all between the two pieces of legislation. “And it’s bad for the system, because… when someone feels hard-done-by, it’s really hard to get their concerns addressed in the media… I think it is certainly being used as a crutch.”

Wangersky pointed out that there are two sides to every story, and that the individuals and institutions who are bound by privacy legislation are sometimes at a disadvantage because they cannot defend themselves or let outlandish accusations go unchallenged. “Not everybody who is making a complaint (is necessarily telling the truth)… We had a situation with someone who came back to us after the fact and said, ‘Look, we wish we had a mechanism where we could talk to you about this particular individual because what he said to you on the record is not true.’ In this instance the institution felt quite hard done by.”

Jerry Vink, the Director of the Newfoundland-Labrador Human Rights Association, has some strong opinions on this issue which are diametrically opposed to the views you’ve read thus far. He is adamant about the need to protect the privacy of individuals, especially children, and agrees that specific details of any case should not be discussed in public.

However, this is a column, not a news story, so I was free to engage Jerry in a wide-ranging debate. I fired several scenarios at him, such as what happens when the person most affected by circumstances cannot engage in public discourse about those circumstances, due to his own so-called privacy. To his credit, Vink showed flexibility.

“Privacy issues, much like other human rights issues, are usually a case of balancing two sets of rights,” Vink said. “That’s what makes it challenging… between the right to privacy and the right to accountability, we haven’t found the balance yet. It’s going to be an interesting debate as time goes on.”

Vink did agree that there is room to take another look at the legislation. “I think it is quite correct to say that since we are in some ways redefining privacy at this time, and because we are dealing with balancing, it is always appropriate to think through the legislation and operating procedures that we use when dealing with privacy. We have to continuously change as time goes by… I have no problem with re-examining the legislation and the operating procedures that are used.”

And there you have it. When one of the most staunch defenders of human rights in the province allows that there is room for change, there is no choice but to throw the door open and push through. Journalists have to put objectivity aside and take a stand on this issue. It is fundamental to free speech and critical to the future of journalism itself.

I am not suggesting that this is some Machiavellian plot hatched by politicians to stifle the public’s right to know. I accept it is an unexpected outcome of the legislation. But that doesn’t make it right. The facts of the case are simple: if those accountable cannot comment on a specific case, then they can’t comment on any case, because every case is ‘specific’.

Both levels of government must revisit the legislation. They must fix this problem.

Our right to privacy must be balanced by our right to know.