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.
Everyone involved with the residential school issue agrees that these documents are sensitive, confidential, and must be protected. The question is what should happen to them when the IAP is finished.
The Chief Adjudicator, who oversees this process, believes that they should be destroyed when they are no longer needed in the IAP. The only exception would be for documents that claimants are entitled to have. 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.
The Government of Canada believes that the IAP documents are government documents. If that were true, information about anyone identified in them would be available to the public 20 years after their death.
The Truth and Reconciliation Commission (TRC) believes that certain IAP documents should be kept. The TRC was also created by the Indian Residential Schools Settlement Agreement that created the IAP, but for different, more public, purposes. The TRC invited former residential school students and their families to share their stories and thousands did. In addition, the TRC would like certain IAP records to be transferred permanently to a special archive for study, and to preserve the history of residential schools for future generations of Canadians.
The Court has decided that IAP documents must be destroyed, except for certain documents that would 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. After 15 years, all IAP documents would be destroyed, except for those that claimants have chosen to preserve.
The Truth and Reconciliation Commission, the Government, and other parties disagree with different parts of the Court’s decision. The Ontario Court of Appeal heard arguments on their appeals on October 27 and 28, 2015. The Chief Adjudicator agrees that the IAP documents are confidential and should be destroyed, but is asking the Court of Appeal to make certain other changes. For example, the Chief Adjudicator disagrees with keeping audio recordings of testimony, and with details of the notice program, such as how long it will last, and who will be in charge of it.
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.
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 “IAP.”
The IAP is a process that provides compensation to former students who can prove that they suffered certain forms of abuse at 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. Eventually, they are 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 claimant’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 decides 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.
Almost 38,000 former students applied for compensation through the IAP. 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 records should be destroyed when the compensation process ends unless a claimant decides otherwise. 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 everyone’s privacy.
The Government of Canada believes that the documents used in the IAP are government documents. This means that Canada’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. Some IAP documents would probably be destroyed 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.
The TRC was created by the same Settlement Agreement that created the IAP, but for different, more public, purposes. The TRC invited former residential school students and their families to share their stories and thousands did. In addition, the TRC would like certain IAP records to be transferred to an archive, for study, and to preserve the history of residential schools for future generations of Canadians.
The records used in IAP claims include:
IAP claim records contain information about claimants as well as many others, including:
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. Many of them may not even know that they have been mentioned in an IAP claim. Those who are accused of abuse are notified of the allegations made against them, if they can be identified and located. But many are deceased, are too old or frail to testify, or have their own reasons for not becoming involved. Some were only children at the time these events happened, and may have also been victims of abuse.
In 2013 the TRC and the Chief Adjudicator asked the Court for direction about what should happen to the IAP records once claims are resolved.
In August 2014, after hearing the parties’ submissions, the Court 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 ordered that most IAP records be destroyed immediately after a case is concluded. An exception was made for four categories of records: application forms; hearing transcripts; audio recordings of hearings; and decisions. These were to be retained for 15 years and then destroyed unless the claimant specifically asked that they be placed in an archive. The Court also recognized the need to first remove private information about other people, before a document is archived.
The Court also directed a program to notify claimants that they have the right—if they wish—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 adjudicators’ decisions placed in a historical archive. Information that could identify other people would first be removed.
This decision by the Ontario Superior Court of Justice is being appealed. The Court of Appeal for Ontario heard the appeal on October 27-28, 2015 in Toronto.
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.
Claimants are entitled to receive a transcript of their own testimony, after any 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 receive and keep transcripts of claimants’ testimony, to preserve forever the memory of Canada’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:
It usually takes two to three months to receive a transcript.
Find out more about the National Centre for Truth and Reconciliation here.
The following documents are available if you are interested in learning more about what should happen to IAP records when claims are finished:
