TORONTO — The public interest in how a health unit in Ontario hired a convicted fraudster to serve as its chief financial officer outweighs the privacy interests of the former medical officer of health who recommended his hiring, the province’s top court affirmed on Tuesday.
The ruling, which upheld a decision by the privacy commissioner, means Algoma Public Health can hand over a forensic report on the situation to a journalist, who asked for it under freedom of information laws, despite the objections of Dr. Kim Barker.
“The commissioner’s conclusion that Dr. Barker’s privacy interests should yield, as they were clearly outweighed by the compelling public interest in disclosure, is reasonable,” the Court of Appeal said. “It fell within the range of acceptable outcomes and is thus entitled to deference.”
Court records show the case arose in 2013, when the public health unit based in Sault Ste. Marie, Ont., hired Shaun Rothberg as its interim CFO for six months, ending in May 2014. His hiring came after the previous CFO left under a cloud amid criminal charges of breach of trust and theft.
However, Rothberg turned out to be Shaun Rootenberg, of Thornhill, Ont., who had a criminal record of his own for multiple counts of fraud. The revelation by media outlet SooToday prompted Barker to resign in early 2015, sparking questions about her role in his hiring and whether the two had a personal relationship that had put her in an undisclosed conflict of interest.
The provincial health minister at the time ordered an assessment of Algoma Public Health, which was sharply critical of Barker’s performance. In addition, the public health unit itself retained KPMG to do a forensic investigation into the Rootenberg situation.
Barker agreed to talk to the investigator on the promise of confidentiality, and KPMG reported its findings to the health unit in March 2015.
In response to a request by SooToday for the report under the Municipal Freedom of Information and Protection of Privacy Act, the health unit decided to release it in its entirety even though it contained sensitive personal information about the former medical officer of health. Court records show the unit was of the view that making the report public would “inform the citizenry about the activities of the institution during a time when its integrity was in question,”
Barker appealed to the province’s privacy commissioner, who found a “compelling public interest in the disclosure of the record” that outweighed her privacy considerations. She then turned to the courts.
In December 2017, Divisional Court sided with Barker after concluding the commissioner had failed to provide adequate reasons for finding that the public interest outweighed Barker’s privacy interest. The commissioner appealed.
The Appeal Court, in its analysis, found the commissioner had been alive to the potential harm to Barker from making the entire KPMG report public.
“The commissioner described highly sensitive information as information that, if released, would give rise to a reasonable expectation of significant personal distress,” the Appeal Court said. “Although reputation is not specifically mentioned, it was…encompassed within the concern identified by the commissioner.”
The appellate court noted that Barker was a senior public official accountable to the community, the health unit board as well as the Ministry of Health. The “highly sensitive” personal information in the report was “essential to the determination of whether a conflict of interest existed,” the court ruled.
Barker went on to Nunavut, where she rose to the territory’s chief medical officer of health before parting ways in October.
Toronto police charged Rootenberg in 2017 with four counts each of fraud. They alleged he used dating sites to lure his victims into an intimate relationship before defrauding them.
Colin Perkel, The Canadian Press