Alarm sounded over school divisions’ silence

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This article was published 25/09/2022 (724 days ago), so information in it may no longer be current.

A near-blanket refusal by Manitoba school divisions to provide information about teacher misconduct is “insulting” and “nonsensical,” privacy experts say.

The Free Press filed freedom of information requests with the province’s 37 school divisions, asking for non-identifying information about cases of misconduct at each division over the past five years. The information requested included: the number of teachers investigated for misconduct; the nature of the allegations; the outcome of the investigations; and the number of educators employed within the division.

Just two divisions, Whiteshell and Border Land, confirmed they had no recorded cases of misconduct during the specified time period.

All others rejected the request, refusing to even say how many teachers are on staff. Border Land, despite confirming it didn’t have any cases, still also sent a refusal letter.

Kevin Walby, an access to information specialist and associate professor in the department of criminal justice at the University of Winnipeg, said it is “insulting” for publicly funded bodies to deny Manitobans access to information about important issues, such as teacher misconduct.

“It brings the (Freedom of Information and Protection of Privacy Act) system into disrepute and it brings the government into disrepute when week after week Manitobans are hearing that this government will not even release just basic data pertaining to public institutions that we’re paying for with our tax money,” Walby said. “They’re just trying to shut (inquiries) down.”

”It brings the government into disrepute when week after week Manitobans are hearing that this government will not even release just basic data pertaining to public institutions that we’re paying for with our tax money.”–Kevin Walby

Most divisions used the same rejection letter. They cited multiple reasons for non-disclosure including: it would be “an unreasonable invasion of a third party’s privacy”; it would reveal “advice to a public body”; it involves private “workplace investigations”; and it would take too much time and use up too many resources.

David Fraser, a privacy lawyer based in Nova Scotia, calls the responses “nonsensical.”

“They have an obligation to… redact the stuff that they can’t disclose and provide you with the balance of it,” Fraser said. “There clearly would be records that would include the information you’re looking for and their use of the exclusions to say we’re going to have to withhold all of it, that’s BS.”

The shroud of secrecy comes amid a string of recent arrests of Manitoba teachers, including one high-profile case.

Winnipeg high school football coach and phys-ed teacher Kelsey McKay, 52, is currently facing 24 charges for sexual assault and exploitation-related offences involving nine former players. McKay and his lawyer have declined to comment as the case is before the courts. Originally arrested in April, McKay was released on bail and is now on unpaid leave.

In the past year, police have also arrested teachers in Ste. Anne, Brandon, Steinbach and Winnipeg, charging them with sexual offences relating to students.

Noni Classen, director of education with the Canadian Centre for Child Protection in Winnipeg, said it’s “incredibly problematic” for the public to only learn of cases of misconduct when they rise to the level of criminality. Not all serious cases result in charges, she said.

Parents “would be in the right to be outraged” if they found out their child was harmed by an educator with a history of inappropriate behaviour, Classen said.

“Parents have a right to know if there is information that could warrant a concern with their child being in a classroom with somebody who has been found guilty of sexual misconduct based on their profession or other concerning judgment calls that compromise children,” she said.

“Parents have a right to know if there is information that could warrant a concern with their child being in a classroom with somebody who has been found guilty of sexual misconduct.”–Noni Classen

Classen, who has called for an independent oversight process that is open to the public, also said the cases need to be reframed as “child-safety” issues, not “workplace investigations.”

Fraser questioned why divisions said they were concerned about an invasion of third-party privacy, when the request specified only non-identifying information was sought.

“There’s something perverse about them saying, ‘We can’t provide you with this information because providing you with this information would identify the people that you don’t want to identify.’”

He was also concerned about many responses being the same, word for word.

“It suggests that they’re just rubber-stamping,” he said. “They’re not giving due consideration to these requests.”

Walby took that criticism a step further.

“It seems like the requests have been treated politically,” he said.

The fact that nearly all responses were identical suggests the file was passed to someone — he suspects in provincial government — who made the final decision, he said.

“It is political control of the freedom of information system,” he said, calling Manitoba’s lack of transparency “an embarrassment.”

The province disputes Walby’s interpretation.

Education Minister Wayne Ewasko said in a statement the province is not consulted on such access requests. He noted his department recently released related information about teacher misconduct following a freedom of information request.

“Any assertion that the province would grant the access, while simultaneously interfere in the independent processes of school divisions is inappropriate and completely false,” he said.

The Free Press filed a follow-up FIPPA request with about two dozen divisions for communications and correspondence generated by the original query. The request was rejected again, with divisions sending copies of the same letter.

Additional questions sent to a handful of school divisions asking for basic school policies on misconduct also went unanswered.

While public bodies are allowed to work together on freedom of information requests — as Fraser suspects was the case here — Manitoba’s ombudsman, Jill Perron, said: “even if public bodies were to discuss a response, each individual public body is still accountable for its own access decision upon complaint to the ombudsman.”

Referencing a 2019 report from her office, compiled following a complaint about educational bodies sharing information, Perron reminded public bodies to act “impartially.”

Fraser said there can be benefits to bodies working together to craft the same response — providing consistent, logical answers to the same questions — but only if they’re working in “good faith,” not if they’re trying to conceal public records.

katrina.clarke@freepress.mb.ca