P.O. v. Family and Children Services Niagara, 2012 CFSRB 38

CHILD AND FAMILY SERVICES REVIEW BOARD

P.O.

v.

FAMILY AND CHILDREN SERVICES NIAGARA

REASONS FOR DECISION

WRITTEN REVIEW

Date: September 21, 2012

Citation: 2012 CFSRB 38

Indexed as: P.O. v. Family and Children Services Niagara

(CFSA s.68)

REASONS FOR DECISION

WRITTEN REVIEW

INTRODUCTION

1The Child and Family Services Review Board (the “Board”) received an application from P.O. (the “Applicant”) on August 16, 2012 regarding a complaint against the Family and Children’s Services Niagara (the “Society”) under section 68.1 of the Child and Family Services Act (the “Act”).

2The Board has determined that an oral hearing is not required in this case as the Board has sufficient information before it to make its decision based on the written material filed.

3The Applicant’s complaint relates to her request for an un-edited (un-redacted) copy of her child welfare file and the Society’s response to her request.

4On August 23, 2012, the Board determined that the application was eligible to proceed to the next stage of the Board’s process. The application was found eligible under subsections 68.1 (4) 4 and 5 relating to the Applicant’s right to be heard when decisions are made or concerns raised and her right to reasons for decisions affecting her interests.

5The Board must determine whether the Society heard the Applicant when it made the decisions about what information, how and when to release it to her; whether the Society heard her concerns about their approach and finally, whether they provided her with reasons for their decisions about file disclosure.

6The Board received the Society’s Summary Reply to the application on August 24, 2012. The Summary Reply included a copy of a letter to the Applicant dated August 17, 2012. The Application contained an email exchange between the Applicant and the Society, on August 2, 3, 8 and 9, 2012.

7The Board finds that the Society did not hear the Applicant or provide her with reasons. However, the Society has since provided the Applicant with reasons and is open to her file disclosure request. The Board makes an order relating to the Applicant being heard about the costs of file access.

BACKGROUND

8The Applicant has a history of involvement with the Society from [ ] to [ ], involving her children. She is not currently involved with the Society. Currently, according to the Society, she is not the primary caregiver or custodial parent of the children. On August [ ], 2012, the Applicant emailed the Society asking to take possession of her Society records and for a complete explanation of the process including sections of the Society’s Policy and Procedures manual.

9On August [ ], 2012 she went to the Society offices to hand deliver the email of August [ ], 2012. She met with worker, S.W. [the worker] who asked for a copy of identification for file disclosure. They discussed email as a way to communicate. The Applicant asked for full, complete (un-edited) files. The worker told the Applicant that she would need to get a lawyer and make a request through the Society legal department. That same day, the Applicant emailed the Society to complain about the meeting and particularly, wanting to know the basis for the worker’s assertion that she needed a lawyer and why disclosure would take so long.

10On August [ ], 2012, the worker emailed back to clarify that the Applicant did not need a lawyer. The Applicant emailed back on August [ ], 2012, asking about the Society staff who was copied and her role, and why the worker had said the Applicant needed a lawyer if she didn’t and finally, whether a decision had been made about her request.

11On August [ ], 2012, the Society responded to the Applicant’s request for a complete, unaltered and un-redacted copy of her file, setting out seven requirements based on Ministry policy and confidentiality principles.

ANALYSIS

12The Board must determine whether the Society heard the Applicant when decisions were made relating to her request for file disclosure and when she raised concerns. The Board has found that the Society did not hear the Applicant, as required. The Board must determine whether the Applicant was provided with reasons for its decisions. The Board has found that the Society did not give reasons until after the Application was filed with the Board.

13The Applicant made a written request, specifically asking the Society to provide the relevant file disclosure policies. The Applicant met with a worker who did not provide the policy but did explain that a copy of identification was necessary according to policy. When it became clear that the Applicant wanted an un-edited file, the worker also told the Applicant she needed to make a request through a lawyer, to the Society legal department. The Applicant disagreed with the policy about identification but reluctantly left a copy of her license with the worker. The worker did not give her the full file disclosure policy and further, gave her incorrect information: that she needed to get a lawyer to make the request. When the Applicant challenged this decision, she was told it was an error. However, when she asked for reasons for this mistake and for the status of her request, she got no response until after she filed an application with the Board.

14The obligations under s. 68.1 (4) 4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

15To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

16The Applicant made a clear request for the information from her file. When she advised that she wanted an un-edited file, the Society closed off discussions and told her she needed to get a lawyer. This defensive move was not indicative of genuine, open communication. Even after this was clarified as being a “mistake”, the Society did not follow up on the Applicant’s request. She had already made the request for the file which was not processed but rather, ignored. Nor did the Society engage in a dialogue with the Applicant about her concern about being told a lawyer was needed or the length of time file disclosure would take. The email exchange between the parties shows that the Society did not engage the Applicant fully, ignored her ultimate request and did not answer her questions. Therefore, the Applicant was not heard by the Society, up to the time of her application to the Board.

17To meet the statutory obligation, reasons must be timely and detailed and the Applicant must be given sufficient information to understand what factors were considered in making a decision and why. The Society did explain its policy regarding identification but it did not explain its six other requirements when the Applicant made her initial request for the disclosure policy on August [ ], 2012 or on August [ ], 2012. Instead, the Applicant was told incorrect information: to obtain a lawyer and she was not told why. No explanation was given to her for this when it was said to be a mistake, despite her request for an explanation. The Applicant was not given the full explanation including the Society’s process under Ministry policy until after she filed her application with the Board. The Applicant was not given enough information up to the time of the Application to understand what the rules on file disclosure were, why she was told she needed a lawyer and why her request for an un-edited file was not one that the Society could fulfil.

18The Society’s August [ ], 2012 letter does set out seven file disclosure requirements based on Ministry Policy. The letter refers to the confidentiality and privacy of personal information regarding other individuals in the Applicant’s record and the protection of that privacy. The letter also refers for the need for consents from custodial parents for information relating to children under the age of 16. The letter also talks about the cost of copies because the file is large. The letter also specifically addresses the time frame for disclosure as 180 days because of the length of involvement with the Society.

19In its summary reply, the Society says that it is “open” to the Applicant to request her file. The Board finds that the Applicant has requested her file. The Board recommends that the Society proceed to process the request which has already been made, in accordance with its policy and practice. The Board notes that the costs process referred to at number 6 of the August 17, 2012 letter appears to be specific to the Applicant because of the size of her file. This is the first time that costs appear to have been raised. The Applicant should be given the opportunity to discuss alternative approaches. The Board understands that the provision of identification is not specific to the Applicant and is part of the existing practice and policy.

CONCLUSION

20The Board finds that the Society did not meet its obligations to the Applicant up to the time of the Application. However, the Society has since taken steps to meet its obligations. The Applicant has not had a chance to be heard regarding the decision about the costs of file disclosure. Therefore, the Board orders that the Society comply with the Act by giving the Applicant the opportunity to be heard by meeting in person or over the telephone to discuss her ability to pay for file disclosure and alternative options to those contained in the August [ ], 2012 letter.

CONFIDENTIALITY ORDER

21Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.