Island whistleblowers consider legal options after report on privacy violation
Published Friday, February 2, 2018 10:27AM AST
Susan Holmes is shown at her home in Moncton, N.B., Tuesday, Jan. 30, 2018. (THE CANADIAN PRESS/Ron Ward)
Two whistleblowers whose private information was leaked in brown envelopes from Prince Edward Island's government to the Liberal Party say they won't fade away without being compensated for the economic and emotional toll on their lives.
A report released last month by the privacy commissioner -- completed six years after the initial complaint -- found the province breached the basic privacy rights of three women who held a September 2011 news conference to allege fraud and bribery in a provincial immigration program.
Susan Holmes, a former manager in the provincial government's Population Secretariat, said she's been refused a meeting with Premier Wade MacLauchlan to discuss the ruling and possible ways to "make a wrong right."
She is now seeking a lawyer willing to take on her case, the 61-year-old said.
"I came forward with an outstretched palm and he did not take my hand, and to me that's a political mistake," she said in a telephone interview from New Brunswick, where she now lives.
"I'm considering legal options."
Cora Nicholson, a 67-year-old former program officer in the Department of Economic Development's immigration division, says she too is considering seeking a lawyer over the privacy breach.
Svetlana Tenetko, another former immigration program officer, said in emails she intends to discuss the matter with Nicholson and Holmes.
"My private information has been exposed to the whole country ... I had to leave Prince Edward Island and retire," she wrote in an email. "Lawyers cost a lot and it takes years."
The province has promised to follow the privacy commissioner's recommendations that it improve education on privacy rules, and create clear rules requiring an internal investigation if a privacy breach occurs.
However, Michael Bryant, the executive director of the Canadian Civil Liberties Association, said the response falls short in addressing an incident that his organization believes has had a chilling effect on whistleblowers on the Island and across Canada.
"It's a nightmare for a citizen. This was the corrupt use of government power for partisan political ends," he said in an interview.
Holmes, Tenetko and Nicholson learned from reporters attending their 2011 news conference that their office emails, personnel records and the province's response to Nicholson's still-confidential human rights complaint had found their way to journalists.
The women had come forward to discuss the province's provincial nominee immigration program, alleging applications that didn't meet criteria were approved and that bribes were provided for fast-tracked applications. Holmes also sent the allegations of fraud to federal officials at Citizenship and Immigration.
The RCMP and Canada Border Services Agency later started investigations but decided not to proceed with any charges.
The emails fed out by the Liberals portrayed the women as partisans in an unfolding provincial election campaign, while then-premier Robert Ghiz denounced their allegations before going on to win the election.
One of the released files revealed Nicholson's affiliation with the Tories years earlier, as well as confidential details of a human rights complaint she'd launched for job discrimination on the basis of her political affiliation.
Within days, the women filed a formal complaint to the privacy commissioner, but the agency produced no report while Ghiz remained in office, and for over two years after MacLauchlan took over as Liberal premier in February 2015.
Commissioner Karen Rose says in an email that it was "an issue of inadequate resources" for her predecessor, and the backlog of privacy complaints has taken time to clear since several positions were added to the office two years ago.
Nicholson said waiting for a result was deeply frustrating. "It was really dormant for most of the six years," she said.
The commissioner's findings describe the murky possibilities of how the information changed hands among some combination of government officials -- who included officials involved in the election campaign -- and Liberal party officials.
She concluded one possibility is government officials directly gave the Liberal party the "brown envelope" with the materials, while another possibility was "an unknown third party accessed the personal information and disclosed it."
"In either case, these ... public bodies have failed in their obligations under the ... Freedom of Information and Protection of Privacy Act," says the ruling.
Holmes and Nicholson say that since the privacy breach they've been unable to find employment on the Island, and describe online harassment and years of worries over the fallout from bringing their concerns forward.
Nicholson said since 2011 she hasn't received responses when she applied for provincial government jobs. "As soon as they do an internet search and they see whistleblower, you're done," she said. She has background in payroll, accounting and human resources, and still lives on the Island.
"It's the stress of it all, the trolls online," she said, her voice breaking with emotion.
MacLauchlan did not respond to an interview request from The Canadian Press.
His communications aide sent an email saying the current Liberal administration wouldn't tolerate a similar breach, that the province had brought in whistleblower protection legislation, and it has appointed and ethics and integrity commissioner.
Still, Nicholson and Holmes say those steps don't go far enough to protect future whistleblowers, and say they wouldn't feel protected by the new law.
Both women say MacLauchlan's whistleblower legislation should ensure an arms-length agency investigates privacy breaches, rather than internal inquiries like the one ordered by Economic Development shortly after their complaint.
The premier's office email also asserts: "The commissioner's report does not recommend restitution."
Yet, Rose said in an email there is actually no provision under her governing legislation for her to make such an order.
Bryant said he thinks the province's government may be worsening its legal situation. "They should assist the aggrieved because the damage award is only to go up if the government continues to run away from this problem," he said.
"The government of P.E.I. is liable in some fashion for having wronged these people. And the fact it happened six years ago is no reason for the province to wash its hands of it."
James Aylward, the Tory Opposition leader, said the premier's refusal to meet with the women to express the province's apology in person is a serious error.
"It's incumbent on the premier to show he's concerned about issues such as this ...There isn't going to be any healing if there's no meaningful dialogue and that needs to be face-to-face in a room together," he said in an interview.
Rose said her office has the authority to disclose information to the RCMP if there is evidence of an offence, but it "has not yet referred any matter to the police or to the Crown attorney."
Her report has noted it is "challenging" to identify any one individual responsible for the privacy breach.
The provincial nominee program the women criticized allowed foreign investors to fast-track receipt of Canadian visas by providing about $150,000, some of which was invested in P.E.I. companies.
The program was shut down in 2008 after the federal government said it was operating outside rules that required immigrants to be actively involved in companies they invested in.