What is happening to IAP documents?
The Independent Assessment Process (IAP) is, and has always been, a private and confidential process. The documents collected and prepared in the IAP are treated with care and are subject to strict privacy measures. These documents are sensitive, confidential, and must be protected. At hearings, survivors were promised that the details of the abuse they suffered would not be shared outside the IAP hearing room without their consent.
The Chief Adjudicator, who oversees this process, believes that each claimant should get to decide what happens to their IAP records. Claimants may ask for a transcript of their own testimony, for example. They may choose to keep it, or share it with others, or give it to an historical archive, if they wish. However, if a claimant does not wish to share his or her story, their confidentiality should be respected, and their documents destroyed when no longer required. This position is supported by the churches, the Assembly of First Nations (AFN), the Inuit Representatives, and several other Indigenous organizations.
The Government of Canada believes that the IAP documents are government-controlled documents. If the Supreme Court agrees, information about anyone identified in them would be available to the public 20 years after their death. The government intends to place IAP decisions, and perhaps other documents, in Library and Archives Canada (LAC). Under this scenario, LAC, and not survivors, will decide which documents will be kept, and which ones will be destroyed.
The National Centre for Truth and Reconciliation (NCTR), which houses statements given to the Truth and Reconciliation Commission, also believes that the Government of Canada should control the IAP documents. The NCTR would like IAP records to be transferred permanently to its archive for research and education purposes.
The courts overseeing the Indian Residential Schools Settlement Agreement have decided that IAP application forms, hearing audio recordings, hearing transcripts, and decisions, should be kept for a 15-year waiting period. During that time, claimants would be notified about the archive and its purpose. This way, they could decide whether they want their hearing transcripts and other documents to be preserved at the NCTR. After 15 years, all IAP documents would be destroyed, except for those that claimants have chosen to preserve. The Ontario Superior Court of Justice made this decision in August 2014 and it was upheld by a majority of the Court of Appeal for Ontario in April 2016.
The Government of Canada has appealed to the Supreme Court of Canada. The NCTR supports the governmentâ€™s appeal. All the other parties to the Indian Residential Schools Settlement Agreement, as well as the Chief Adjudicator, oppose the governmentâ€™s appeal and will ask the Supreme Court of Canada to uphold the decisions that give survivors control over their accounts of their experiences at residential schools.
The Supreme Court of Canada will hear arguments on May 25, 2017. They will also be webcast.
Claimants can be confident that while the courts are considering these questions, the Chief Adjudicator continues to guard the confidentiality of IAP records.
Further information on the IAP, the kind of records being discussed, and the court order can be found in the following sections.
The Independent Assessment Process
In 2007, former students of Indian residential schools reached a historical Settlement Agreement with the Government of Canada and the churches that ran the residential schools. The Agreement was intended to resolve lawsuits by thousands of former residential school students and to address the legacy of those schools. One part of the Agreement was the Independent Assessment Process known as the â€śIAP.â€ť
The IAP is a process that provides compensation to former students who were abused at a residential school.
On their IAP application forms, claimants must provide personal information as well as details about the abuse they suffered and how it has affected their lives. They also are asked to identify alleged perpetrators. To support their claim, claimants are also asked for records documenting their medical, education, corrections, income tax, and employment histories. Canada also provides relevant school records for each claim.
Most claimants testify at a private hearing before a neutral adjudicator. Those attending the hearing include the adjudicator, the claimant, the claimantâ€™s lawyer (in most cases), and a representative of the Government of Canada. Sometimes there is a church representative. A claimant also may choose to be accompanied at the hearing by a health support worker, family members, an Elder, or others.
Everyone attending a hearing must sign a written confidentiality agreement, promising to keep details of the claim private.
The adjudicator asks the claimant questions and manages the hearing, then writes a decision about whether compensation will be paid, and what amount.
The IAP is administered by the Indian Residential Schools Adjudication Secretariat under the direction of the Chief Adjudicator.
When the IAP is finished, what will happen to the IAP documents?
Almost 38,000 former students applied for compensation through the IAP. Others applied through the previous Alternative Dispute Resolution process, which accepted applications from 2003 to 2007. Most claims have been resolved and the rest soon will be. As the IAP winds down, a question remains -- what should happen to the hundreds of thousands of documents that were used in the process?
The Chief Adjudicator believes that the promises of confidentiality made at every hearing must be honoured and the wishes of individual claimants about their records must be respected. The Chief Adjudicator believes that each survivor should have the right to control his or her own records. Claimants may decide to keep their own records or share them with others, including an historical archive if they wish. Even in those cases, information that identifies other people would first be removed, to respect everyoneâ€™s privacy. If a claimant does not wish to share information about their experience at residential school, it should be kept confidential, and the records destroyed when no longer required.
The Government of Canada believes that the documents used in the IAP are government-controlled documents. This means that the federal governmentâ€™s privacy and access to information laws would apply to them. Those laws protect the privacy of an individual identified in a document for only 20 years after their death. If the government controls them, it would probably destroy some IAP documents, but others would be preserved and information about anyone identified in them would become available for public access when that person has been dead for 20 years. This would give claimants no say in which documents are destroyed and which are kept.
The NCTR would like IAP records to be transferred to its archive, for research and education purposes, whether or not the individual survivor agrees.
What are these documents?
The records in dispute include:
- Application forms, with details of alleged abuse. These often include names of other students and/or staff who are alleged perpetrators;
- Medical, psychological, corrections, education, family and child services, and income tax and employment records, which survivors had to submit in support of their claim;
- Recordings and transcripts of testimony by claimants, those accused of abuse, and witnesses;
- Expert psychological and medical reports obtained for the purposes of the claim; and
- The adjudicatorâ€™s decision.
Whatâ€™s not affected?
Not all records related to residential schools are affected by the current case. These include:
- Historical records from the time that the residential schools were open. These include records about the students who attended and the staff who worked there.
- Statements given by survivors and others to the Truth and Reconciliation Commission.
- Records related to the Common Experience Payment and administration of the Indian Residential Schools Settlement Agreement.
These records already exist at Library and Archives Canada (LAC) and/or the National Centre for Truth and Reconciliation, and they will remain there in any event. The legacy of Indian Residential schools will be preserved through the thousands of documents and statements collected by the TRC and other historical documents already archived at LAC.
Only records created specifically for the confidential Independent Assessment Process are affected by this court case.
Why is it so important to respect privacy?
IAP claim records contain very personal information about claimants as well as many others, including:
- adults and students who are accused of abuse;
- witnesses who volunteer to testify; and
- fellow students, family and community members whose personal histories and relationships may be discussed in the records and during testimony.
Many claimants would not have made a claim if they did not receive a guarantee that the privacy of their documents and hearing would be protected. Privacy has also been promised for other individuals identified in the claims.
Asking the Court for direction
In 2013, the Truth and Reconciliation Commission and the Chief Adjudicator asked the Supervising Courts for direction about what should happen to the IAP records once claims are resolved.
In August 2014, after hearing the partiesâ€™ submissions, the Ontario Superior Court of Justice decided that the promises of confidentiality must be respected and confirmed that claimants and others identified in IAP records are entitled to privacy.
The Court decided that four categories of records â€” application forms, hearing transcripts, audio recordings of hearings, and decisions â€” should be retained for 15 years so that claimants can decide whether to place their own records in an archive. The Court also recognized the need to first remove private information about other people, before a document is archived. Other records, such as the medical and income tax records that claimants must submit to prove their claims, will be destroyed when they are no longer required for the IAP, as will application forms, transcripts, audio recordings and decisions if the claimant doesnâ€™t choose to place them in an archive within the 15 year retention period.
The Court also directed a program to notify claimants that they have the right â€” if they wish â€” to share their stories with the archive set up by the National Centre for Truth and Reconciliation (NCTR). Claimants can choose to have their application forms, transcripts and audio recordings of hearings, and adjudicatorsâ€™ decisions placed in a historical archive. Information that could identify other people would first be removed.
In April 2016, the Court of Appeal for Ontario upheld this decision, and ruled that records from the Alternative Dispute Resolution process (the predecessor to the IAP) should be treated the same way.
The Government of Canada obtained leave to appeal this decision to the Supreme Court of Canada, which will hear oral arguments on May 25, 2017.
The IAP has always been private and confidential. Documents collected and prepared in the IAP continue to be treated with care and security as the Courts consider what should happen to them when claims finish.
Giving your transcript to the National Centre for Truth and Reconciliation (NCTR)
Claimants have always been entitled to receive a transcript of their own testimony, after names and identifying information about others have been removed, to respect their privacy. So far, about 5% of claimants have asked for a transcript.
Claimants may do whatever they like with their transcripts. One option is to place it in an archive set up for this purpose at the NCTR, or with another historical archive.
The NCTR has been created to preserve forever the memory of Canadaâ€™s residential school system. Claimants who wish to preserve for future generations the details of their experiences should consider depositing a copy of their transcript with the Centre.
Claimants may request a transcript of their testimony through their lawyer or support officer, or by contacting the Secretariat:
- Mail: Indian Residential Schools Adjudication Secretariat, 2010 12th Avenue, 9th Floor Regina, SK S4P 0M3
- Fax: (306) 790-4635
- Email: IAPS.Post.Hearingunit@irsad-sapi.gc.ca
It usually takes two to three months to receive a transcript.
Find out more about the National Centre for Truth and Reconciliation here.
Find out more
The following documents are available if you are interested in learning more about what should happen to IAP records when claims are finished:
- Chief Adjudicatorâ€™s Factum to the Supreme Court of Canada
- Decision, Court of Appeal for Ontario, April 4, 2016
- Decision, Ontario Superior Court of Justice, August 6, 2014
- Affidavits from residential school survivors
- Affidavit of privacy expert David Flaherty, May 2, 2014
- Speech by Chief Adjudicator calling for protection of IAP records, Edmonton, June 19, 2014
- News release, June 19, 2014
- Request for Direction of the Truth and Reconciliation Commission, August 14, 2013
- Request for Direction of the Chief Adjudicator, October 11, 2013
- National Centre for Truth and Reconciliation