DCFS records release is ‘in the public interest’
Disclosing records about the suspension of the head of the island’s child protection agency is “necessary to further the public interest” in the safeguarding of children, according to the Information Commissioner.
Gitanjali Gutierrez has ordered the Department of Child and Family Services to release two notices that were served in 2018 on its director, Alfred Maybury, after he was accused of misconduct and placed on administrative leave.
The department has until February 9 to release the records, as well as excerpts from a letter sent by a law firm dealing with concerns about children in care not receiving independent representation in court.
Mr Maybury, who was cleared of any wrongdoing after an internal inquiry and returned to his duties in January 2019, objected to the documents being made public.
Ms Gutierrez wrote in a decision issued last month: “It would be unreasonable for the director to expect zero public scrutiny of this matter and that no further disclosure would be made of any information relating to the formal steps taken in response to the complaint.”
Mr Maybury was suspended in 2018 for five months on full pay after allegations that he allowed four DCFS staff members accused of mistreating children in care to continue working.
It was reported at the time that the allegations were outlined in a letter to Michael Weeks, then the Cabinet minister responsible for the DCFS. It was sent by lawyer Saul Dismont, who was instructed by Tiffanne Thomas, a freelance social worker acting as an independent advocate, or litigation guardian, for a boy in care.
Mr Maybury was reinstated after an internal investigation found no misconduct on his part.
The Royal Gazette submitted a public access to information request to the department for records, including any that showed when and why he was suspended. No confidential or personal information about children was sought.
The DCFS initially refused on the grounds that it did not hold the records, but Ms Gutierrez ordered it to search again, after which it found the three documents, but it would not disclose them.
The Royal Gazette asked the Information Commissioner to review the refusal.
Her inquiry considered whether the letter from Mr Dismont, of Marshall Diel & Myers, referred to matters heard in the Family Court that were prohibited from disclosure under the Children Act 1998.
Ms Gutierrez, who did not name any of the parties in her decision, found that it did.
She said that other parts of the letter with “opinions about the implications of the information learnt, concern about the director’s alleged misconduct” and views on potential changes to the Children Act could be made public.
Ms Gutierrez wrote that those parts did not “directly reference the director, but instead are focused on broad concerns, including the public debate at the time concerning litigation guardians and legal representation for children under the director’s care and proposed amendments to the Children Act”.
At the time, the Government wanted to change Section 35 of the Act, replacing the word “shall” with “may” regarding the requirement for the court to consider the appointment of a litigation guardian in cases involving children.
Campaigners argued the change would erode the right of vulnerable youngsters to independent legal representation in court and the Bill was dropped.
Disclosure of parts of the law firm’s letter was fair, the commissioner said, as this was not personal work information or detail about the allegations against the director.
“Disclosure is also necessary to further the public interest in the broader concerns about the framework for safeguarding children, particularly during legal proceedings,” Ms Gutierrez concluded.
“It would allow the public to understand what broader issues were brought to the department’s attention while amendments were being considered for the section of the Children Act allowing for the appointment of litigation guardians and legal counsel.”
The commissioner said the “administrative notices sent to the director, which set out the restrictions on his employment that would be in place while an investigation of the allegations was conducted” should also be disclosed.
She said that those records did not touch upon the nature of the allegations, but their release would allow the public to confirm whether the Government followed existing administrative leave procedures for civil servants.
Ms Gutierrez wrote that the “director’s expectation of non-disclosure of information that did not speak to the content of the allegations is not reasonable in the circumstances of this review”.
She said: “As the executive officer leading a department that services one of Bermuda’s most vulnerable populations, the director should reasonably expect to be accountable to the public for his leadership and work as a routine matter, rather than expect that the matter would disappear from the public record.
"Furthermore, disclosure is necessary to further the important public interests. Disclosure is necessary to further greater public understanding of the steps taken by public authorities in response to complaints made in relation to the performance of the department’s executive officer’s duties.“
The DCFS said in a statement yesterday: “Children are a vulnerable group and, in a small community, extra care must be taken.
“The risks in sharing data are higher for children. Sharing children's data with third parties can expose them to unintended risks, and a child also has a right to privacy. If data is used in a way that is detrimental to a child, precaution should be taken. The order of the Information Commissioner is under review.”
Information Commissioner Gitanjali Gutierrez has upheld the Department of Child and Family Services’s refusal to release records about a matter involving its assistant director, Kennette Robinson.
Ms Robinson was accused of punching a 17-year-old girl in her care in May 2019 and later cleared in Magistrates’ Court of assault and mistreatment.
The teenager had become distressed at the airport because she did not want to be sent to an overseas institution by the DCFS.
Ms Robinson, who denied any wrongdoing, said at the trial that she held the girl back by her belt, took a pair of headphones from her and “threw them to the floor and stomped around them” causing the teenager to cry, and pushed the girl in the upper chest after the girl lunged at her from behind.
Magistrate Khamisi Tokunbo found in relation to the mistreatment charge that the child was in the care of the DCFS and Ms Robinson’s actions were reasonable and “as any parent might have acted by way of chastisement”.
He added that the only evidence for the assault charge came from the girl, and there was “ample evidence that she was coaxed or encouraged to pursue these proceedings”.
The DCFS has a policy of “absolutely no physical discipline of children” in care.
The Royal Gazette submitted a Pati request for records of any disciplinary action taken against Ms Robinson, who has regularly acted in the role of DCFS director, but it was rejected.
According to the commissioner’s review, the department said disclosure “was likely to have an irreversible impact on the individual’s personal, family and professional life and have a negative impact on the department as a whole.”
Ms Gutierrez concluded that six withheld records, which were in Ms Robinson’s personnel file and related to the relevant disciplinary matter, were exempt because they included personal information and disclosure would be unfair to her.
The commissioner wrote: “A senior public officer, who is not the executive officer with outward-facing accountability, has a reasonable expectation that their personal information related to disciplinary matters will stay between themselves and their supervisor and employer, to whom they are accountable.”
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