IAP privacy issues being hammered out in court

If the information and documentation gathered during the residential schools’ Independent Assessment Process are to be kept, they do not belong with the federal government.

“Why is Canada having so much influence with what happens to these? This is Canada’s holocaust,” said IAP claimant Michael Cachagee, who is also a health support worker.

According to a statement issued by the Truth and Reconciliation Commission (TRC), the federal government “advised that it does not intend to destroy the records submitted by claimants during the IAP proceedings… [and] has decided to send some of these records to Library and Archives Canada (LAC), where they will be kept permanently and eventually made available to the public.”
Kimberly Murray, executive director of the TRC, says it is her understanding that the National Archivist wishes to keep the transcripts and the decisions that will come out of the 38,000 hearings with this information to go to LAC. Twenty thousand hearings have been completed to date.

Murray said the TRC sees the value in keeping the transcripts and decisions, but wants those documents to be housed in the National Research Centre in Winnipeg.

“The IAP transcripts and IAP decisions really are the complete body of the abuses that occurred in those schools. Those statements are tested. So when you think about 100 years from now, 200 years from now, you can hear the criticism of the TRC (statements). ‘Those are just people coming forward and saying what they want. They weren’t tested, they weren’t examined, it wasn’t under oath.’ You can’t deny the IAP testimony though. That was under oath, they were questioned by the adjudicator, there were final decisions made regarding the reliability of those statements. So when we look at (38,000) statements versus 7,000 from the TRC it really puts a different picture on what happened in those schools and the true extent of those abuses,” said Murray.

“We don’t want people denying it 100 years from now. We want people in the future to know it happened so it doesn’t happen again.”

Cachagee also believes there is a difference between the statements gathered by the TRC and the testimony provided during IAP hearings and he believes that information should be examined further.

“What they’re getting (at the IAP hearings) is very, very valuable,” he said. “That’s why it’s so important to set the ground rules before they go ahead and establish what they’re going to do with (the documents). There has to be clarity and very, very specific terms of reference and terms of conditions on how the information would be used, who will have access to it. It has to be based upon an ethical foundation and someone can’t go down tomorrow and get a court order because they want to know about me.”

Confidentiality, says Murray, can be achieved through blacking out names and any other personal details that could lead to identifying the claimant.

However, Chief Adjudicator Dan Shapiro, who heads the Indian Residential School Adjudication Secretariat that conducts the IAP hearings, does not believe redacting is a practical solution considering the sheer volume of documents. And if redacting were to occur, he believes that the documents would lose their archival value. Shapiro is opposed to the retention of any of the records.

“This is the most significant dossier provided about one stigmatized group in our population that has probably ever been gathered and there are such significant risks if this information is released that we will be asking the court to order the destruction of the records once our process is complete,” said Shapiro.

He adds that that IRSAS promised confidentiality to claimants, who, for many, spoke about their abuse for the first time ever. Some claimants said that they would not have spoken if they knew their stories would one day become public.

Schedule D of the Indian Residential School Settlement Agreement, which established the IAP, states, “…all copies (of documents) other than those held by the government will be destroyed on the conclusion of the matter....”

“The Government of Canada is bound by the provisions of the IRSSA, as well as the federal laws regarding information management, access to information and privacy of individuals, and takes these obligations very seriously. The government also takes very seriously the confidentiality promises and guarantees made to the IAP claimants,” wrote Perron.

As well, the IAP Guide states, “The Privacy Act requires that the government keep your personal information for at least two years. Currently, government practice is to keep this information in the National Archives for 30 years, but this practice can change at any time. Only the National Archivist can destroy government records.” Personal information includes name, age, income, medical records and school attendance.

The IRSAS falls under the umbrella of the federal government. However, Shapiro maintains that IAP documents are not government documents.

As well, IRSSA Schedule D notes that while those who receive the applicant’s information are bound by confidentiality, “church entities will use their best efforts to secure the same commitment.”

The schedule does not set out a time frame in which documents are to be destroyed or how they are to be destroyed.

“These records are sitting in Aboriginal Affairs’ offices, and these records are sitting in church archives and sitting in lawyers offices and everybody needs to know that they’re floating around out there and there’s nothing under the settlement agreement that says what to do with these records,” said Murray. “I’m offended thinking all these records are out there, of such a private nature, and no protection.”

Murray also says the documents not placed in LAC – which could include medical, employment, counselling, treatment, corrections, income and Canada Pension Plan records – will be stored in government offices where “any bureaucrat will have access to it.”
If the court deems these records need to be kept, then she wants them placed in the NRC where there are “layers and layers and layers of protection provided by Aboriginal people.”

The TRC and Shapiro have asked the court for direction and to clarify issues around document management, which includes which documents will be destroyed, which documents will be kept, where the documents will be kept, and how those documents will be protected.

Shapiro is also asking that the IAP records be declared under the “deemed undertaking rule,” which means that neither can they be used for any other purpose or archived by LAC.

The Ontario Superior Court heard arguments in Toronto July 14 to July 16.  The TRC, federal government and IRSAS was joined by the NRC, Catholic Entities, Assembly of First Nations, an independent counsel network.

Shapiro is hoping the court will deal with the issue “decisively and quickly,” but says the IAP hearings will continue.

“We plan to continue giving people assurances of confidentiality, because we believe that is what the settlement agreement provides for,” he said.