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Privacy rights in the child welfare system are increasingly gaining attention. Though the latest changes to privacy legislation are welcome, there is a glaring omission that leaves Ontario’s most vulnerable people at risk. If you are one of the more than 100,000 former Crown Wards in Ontario, like me, you may be shocked to learn that the most intimate details of your life at the most traumatic and vulnerable times you ever experienced are unprotected.
After foster children grow up and age out of care, it is normal to presume that files are closed. In reality, files remain searchable and accessible for life without any way to check unauthorized access to them. No parent would approve of a government keeping a permanent and unsecured record of their children’s deeply personal early and adolescent experiences. Yet, we expose the most vulnerable kids in Ontario to this intrusion without a thought to their human right to privacy.
This legislative oversight is even less excusable when you consider that juvenile offenders have greater privacy rights than foster children. Federal legislation protects juvenile criminal records by defining a limited access period (up to age 18), permanently sealing records rendering names unsearchable in any databases, describing circumstances under which files should be destroyed or archived and permitting access to archived files only through the courts. Contrarily, foster kids have no such guarantees to their privacy.
Currently, files are partially protected when designated as “restricted.” This layer of protection provided to some former foster children on a discretionary basis – flags management when the file has been accessed. In practice, restricted designations are most commonly applied to social workers who are under investigation to better protect their privacy. If workers are this nervous about access to files that pertain to them personally, it is not a stretch to imagine the rights of those without a voice are especially vulnerable.
Further, new software will soon allow all child protection employees unfettered access to any current or former foster child and foster parent files without leaving an electronic footprint. Ethics and policies against inappropriate searches are not enough. In 2016, for example, nurses were caught snooping into the late Toronto mayor Rob Ford’s health records. Meanwhile, banks have fired employees for inappropriately accessing financial records and, most recently, agencies are being targeted in ransomware attacks.
The solution to protecting foster children’s privacy rights is simple: seal historic files and ensure all access is auditable. After foster kids “age-out” authorities should seal and archive all files, scrub names from searches, redact personal content in sibling or family files, provide access exclusively to the respective former youth-in-care and permit third party access to archived files only through the courts.
By Jane Kovarikova
7 July 2018