Privacy And Payback

Was a worker’s info leaked to scare would-be whistleblowers?

LABOUR REPORT by Gregory Beatty

The Saskatchewan Party’s track record in labour relations since their election is 2007 is dismal. The Bill 5 fiasco, which saw the Supreme Court strike down a draconian essential services law last January, is the topper. But there’s also Bill 6 (companion legislation that imposed additional hurdles to unionization), Bill 80 (which revised union protocols in the construction industry) and Bill 85 (a massive overhaul of labour law, which critics say was passed with undue haste and reckless indifference to the interests of working people) are other low points.

True, the Wall government did implement the Public Interest Disclosure Act in 2011 to protect government employees who “whistle-blow” on perceived problems in their workplaces. That qualified as a plus in labour relations.

At least, it did until seniors’ care aide Peter Bowden stepped forward on March 30 with concerns about the quality of care provided to residents at his workplace (Oliver Lodge) in Saskatoon.

On April 16, Bowden was suspended with pay after allegations of misconduct were made against him, and in mid-August he was fired after an investigation by Oliver Lodge and the Saskatoon Regional Health Authority.

When Bowden appeared at the legislature, NDP Health critic Danielle Chartier recalls, “our leader asked [the premier] multiple times to ensure Mr. Bowden would not be penalized for speaking out publicly.

“Mr. Wall assured in his response that this would not happen,” said Chartier. “And lo and behold, a few short weeks later the process against him had begun.”

Under the Public Interest Disclosure Act — PIDA for short — Bowden didn’t technically qualify for whistle-blower protection. According to a report by Saskatchewan’s Privacy Commissioner that we’ll get to later, the act doesn’t cover staff employed by regional health authorities and health care organizations.

PIDA also requires whistle-blowers to follow an in-house procedure by reporting to a designated person in their ministry. Disclosure to media, or the opposition at the legislature, are not covered.

Still, as Chartier notes: “the concerns Mr. Bowden brought forward have been backed up by the government’s own documents such the CEO Tour Report and the Ombudsman’s report, and by dozens of families who have spoken out.”

So eager was the Wall government to refute accusations of vengeance on a whistle-blower that when news of Bowden’s suspension surfaced Kathy Young, the premier’s Chief of Operations and Communications, even e-mailed media outlets detailing the specifics of the allegations made against Bowden.

Prairie Dog didn’t receive any of Young’s April 20 e-mails but according to a May 1 Leader-Post report, one read: “There are nine separate incidents being investigated — all of which resulted from Oliver Lodge staff submitting written complaints to management. [Some] were prior to Mr. Bowden coming to the legislature, [some] have occurred since that visit. [Some] fall under the category of patient care concerns. Others [involve] potential harassment of other staff and residents.”

In at least one instance, Young sent out a follow-up e-mail stating that Bowden had allegedly hurt a patient, and that some of the harassment was sexual in nature.

When the NDP raised concerns on April 24 that Young may have violated Bowden’s privacy under the Freedom of Information and Protection of Privacy Act (which treats employment history as protected information), Wall characterized Young’s decision to send the e-mails as a “lapse in judgment” and removed her from the file.

But in the same May 1 Leader-Post report, Wall said, “I’m pretty comfortable with what we’ve done. There’s a provision in the act that allows for the disclosure of information if it’s in the public interest.”

Bowden subsequently launched a privacy complaint under FOIP. On Aug. 19, Privacy Commissioner Ron Kruzeniski delivered his report. Both Oliver Lodge and the Saskatoon Regional Health Authority, he found, had contravened Bowden’s privacy by prematurely releasing information to the Health Ministry on an ongoing investigation into allegations of misconduct. He recommended that both agencies apologize to Mr. Bowden.

The Health Ministry’s subsequent release of that information to the Premier’s office, and the e-mails sent by Young to media also constituted privacy breaches. But because MLAs, cabinet members (including Health Minister Dustin Duncan) and the Premier’s office aren’t considered “government institutions” under FOIP, Kruzeniski ruled, he had no jurisdiction to sanction them.

Nonetheless, Wall magnanimously apologized to Bowden, and promised to implement a recommendation in the report that the loophole exempting MLAs, cabinet members and the Premier’s office from FOIP be closed. [see sidebar]

So all’s well that ends well, I guess. Except… Peter Bowden now stands as a disgraced care aide who will never be able to work in his field again.

And the idea of whistle-blowing as a protected right in Saskatchewan is pretty much dead.

“A Helluva Read”

“When you look at the privacy commissioner’s report, it’s a helluva read,” says Barb Cape, president of Bowden’s union SEIU-West. “The apologies are nice. It’s an acknowledgement that somebody screwed up and they’re taking responsibility. But from our position, for someone to share all of Peter’s information, and no one pausing to say, ‘You know, this doesn’t feel right’, when the legislation gives such clear guidelines… .”

Mind you, in the timeline laid out by Kruzeniski, there was precious little opportunity for reflection.

“It’s just incredible,” says Bill Bonner, an associate professor in the University of Regina’s Faculty of Business Administration specializing in management information services. “Within two hours of the information being received, five different e-mails were being sent out to media.”

As outlined in the commissioner’s report, the Saskatoon Regional Health Authority disclosed personal information about Bowden to the Health Ministry multiple times between March 30 and April 16 (covering the period between his appearance at the legislature and his suspension).

On April 20, the ministry requested details from Oliver Lodge on “serious incidents” tied to Bowden that were then under investigation. At 10:34 a.m., Oliver Lodge e-mailed information to the ministry’s communications branch. That was forwarded to the Deputy Minister at 10:36. By 10:42 it was at the minister’s office, and by 10:52 it had reached the Premier’s office.

Young subsequently sent “many” e-mails to media between 12:01 and 1:38 p.m.

In defending Young’s “lapse”, Wall said the e-mails were intended for “background purposes”, and not publication. He further defended the action by saying the government believed at the time that the release was justified in the public interest to assure the integrity of the whistle-blowing process.

“The premier was quite indignant at media” says Bonner. “He said the public interest in knowing that whistle-blowers won’t be terminated trumped Bowden’s privacy interests.

“All that needed to be done was to provide assurances at the local level that this was an unrelated disciplinary action. But Wall’s focus was ‘I said this was true, and now I have to prove it because we can’t leave it hanging that I might not be telling the truth,’” adds Bonner.

“He claimed it was in the public interest to release the information. Really, though, it was in the government’s interest.”

Wall characterized the government practice of releasing background information to media as “long-standing.” That raises a red flag for Bonner too.

“The government has access to your health information, tax information, welfare benefit information, your academic standing, a whole wealth of information that, as in this case, could be used against a person. Where do you draw the line?”

“If there were issues with Mr. Bowden’s performance, they needed to be investigated, of course,” says Chartier. “But his termination doesn’t pass the smell test. When he came to the legislature on March 30, he had no complaints or concerns on his employment record. Afterwards, they suddenly dig up claims from as far back as 2011.”

“Both the Premier’s office and the Minister of Health have said ‘The buck stops here, and we take responsibility,’” says Bonner. “But the best they can do is apologize? They’ve crossed some serious lines here, and in my mind, they’re just walking away from it.”


So What Happens Now?

When I spoke with SEIU-West president Barb Cape, she confirmed that Peter Bowden had filed a grievance following his dismissal from Oliver Lodge. “The grievance has been filed, and they’re beginning the process outlined in the collective agreement on meeting with the employer, reviewing the investigation report, and seeing where we go from here,” she says.

As the grievance process unfolds, she adds, “there may be an opportunity to proceed to arbitration.

“That’s a quasi-legal board, sometimes composed of one person, other times three, that hears from both sides,” says Cape. “Then they make a ruling based on the language of the collective agreement, and any labour law that has created precedents related to the particular issue.”

Further fallout is likely to come when the legislature resumes sitting. The NDP, says Danielle Chartier, will press the government to follow through on the promise made by Premier Wall to close the loophole that allowed the Health Ministry and Premier’s office to escape responsibility for violating Bowden’s privacy.

“We would be in favour of moving this session to fix those gaps in the legislation,” she says. “Elected members, whether they’re MLAs, the cabinet or premier, should be held to the same standard of respecting people’s privacy as everyone else.”

Bill Bonner of the U of R’s Faculty of Business Administration argues the government should go further, and that a comprehensive review of FOIP is warranted.

“The previous privacy commissioner, Gary Dickson, lamented greatly that the law was first passed in 1992, and it hasn’t been reviewed since. Every other piece of privacy legislation I’ve seen [in other jurisdictions] is set up to be reviewed every five years,” Bonner says. “So the first draft is what we’re working with, and have been for over two decades.”

With both the government and opposition on board, fixing the FOIP loophole should be simple.

Restoring the integrity of PIDA and whistle-blowing in general, though, promises to be much more difficult.

“When you look at Oliver Lodge and the Saskatoon Health Region releasing details on Mr. Bowden’s employment record — that’s information every Saskatchewan employee would expect to be private,” says Chartier.

“The privacy commissioner found them in breach of the law,” she says. “The premier got off on a technicality, and I would argue it was Mr. Wall’s goal to put a chill on other health care workers from coming forward and speaking about their concerns.”

“We’ve been raising these issues as a union,” says Cape. “But when an individual comes forward to say ‘These are the problems I see every day’, that’s a huge statement. We’re protected by a collective agreement, but when the Premier’s office leaks your personal information it does make people think twice about going public with a concern. Do they do that, or just keep their head down and try to do their work to the best of their ability?” /Gregory Beatty

2015-09-03