Genealogy and the Law in Canada. Margaret Ann Wilkinson
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to information held by bodies connected to the federal government was first legislated in 1977 under Part IV of the federal Canadian Human Rights Act but was later re-enacted as the Privacy Act in 1982. Indeed, in an unusual move, Parliament enacted two separate acts, the Privacy Act and the Access to Information Act, together as one bill. Two statutes is the model followed by New Brunswick. In Ontario, access and personal data protection have always been linked in legislation affecting government bodies: the Freedom of Information and Protection of Privacy Act [FIPPA] was passed in 1987 and the Municipal Freedom of Information and Protection of Privacy Act [MFIPPA] in 1989. The combination has become the more common model in the other provinces and territories.
Each of the provinces and territories has its own access legislation governing the public sector and all have companion personal data protection legislation (listed below). Generally, however, it is clear in these laws that records that were specifically created by governments with the intention that they be made available to the public (such as land registry records) will continue to be made available even when they contain personally identifiable information about people. Although in Ontario this “grandfathered” public availability is phrased in general terms, in Quebec, for example, the personal data protection legislation is specifically stated in the law itself not to apply to land registry, civil status, or matrimonial regulations.
Provincial and Territorial Public Sector Access and Personal Data Protection Legislation
Alberta: Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25
British Columbia: Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165
Manitoba: Freedom of Information and Protection of Privacy Act, S.M. 1997, c. 50
New Brunswick: Protection of Personal Information Act, S.N.B. 1978, c. P-19.1
New Brunswick: Right to Information Act, S.N.B. 1978, c. R-10.3
Newfoundland and Labrador: Access to Information and Protection of Privacy Act, S.N.L. 2002, c. A-1.1
Nova Scotia: Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5
Nunavut and Northwest Territories: Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c. 20
Ontario: Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31
Ontario: Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M 56
Prince Edward Island: Freedom of Information and Protection of Privacy Act, S.P.E.I. 2001, c. 37
Quebec: An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1
Saskatchewan: Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. F-22.01
Saskatchewan: Local Authority Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. L-27.1
Yukon: Access to Information and Protection of Privacy Act, R.S.Y. 2002, c. 1
Personal data protection legislation creates a whole regime for the treatment of information about identifiable individuals from the moment that information is collected by an organization to the moment records containing that information are destroyed or deleted. This type of legislation regulates how an organization can collect information about individuals, how it should store it, how it must use it, how it must disseminate it to others outside the organization, and how it must dispose of it.
In the public sector, where personal data protection is linked to access legislation, if the records you seek are not protected by personal data protection laws or some other validly enacted exception to access, the organization is required to make them available to you. However, not every province and territory has decided to make every provincial and municipal organization subject to access legislation. Even the federal government lists the organizations subject to its access and personal data protection legislation and does not make every organization subject to these statutes. Organizations that are not subject to this legislation can choose whether or not to make any information, including personal data, available to you in your genealogical research.
Each act dealing with personal data protection in Canada has set a different time span on protection of the personally identifiable data held by organizations subject to it. Refer also to the table in Chapter 2, “Legislation and How Long Information Remains Confidential”.
• In Ontario, an organization subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act must protect information about individuals for 30 years after that person’s death.
• In Alberta, Saskatchewan, Prince Edward Island, and the Yukon, it is 25 years.
• In British Columbia, Nova Scotia, and under the federal public sector statute, it is 20 years. In the province of Newfoundland and Labrador, for historical purposes, it is the earlier of 20 years after death or 50 years after the record has been created.
• In Manitoba it is 10 years.
• Access legislation in New Brunswick is constructed differently.2 Every exception to the right of access to the information held by the New Brunswick public sector organizations covered is permissive but not mandatory.3 Therefore a government organization can refuse to release information about another person to a requestor but is not required to do so. Similarly, in Quebec, a government body can release personal information “to a [third party] person or a body where exceptional circumstances justify doing so.”4
Once the fixed time periods legislated by the federal government and each province and territory for the protection of personally identifiable data held by public sector organizations have passed, that information must be made available to members of the public who request that information. Therefore, once the periods of protection for personally identifiable data held by public sector organizations in this country have expired, genealogists may request such information from public sector organizations and can expect to receive it.
On this reasoning, you might suppose that information held by the federal government from early censuses would gradually become available 20 years after the deaths of the individuals surveyed. However, the federal census-taking itself is governed by its own law. There is controversy about records of censuses taken after 1911 because, when taking these later, twentieth-century censuses, the government told those filling out the census that it would keep census information confidential.5 Because no time limit was placed on this promise of confidentiality, the confidentiality promised eventually clashed with legislated time limits for public sector personal data protection legislated by Parliament much later in the twentieth century.6 The federal government’s solution, in the twenty-first century, has been to add a question to the 2006 census that asked members of households to consent to the release of information about themselves 92 years after the 2006 census.7 The result is that there are years of the census from the twentieth century from which information will never be available to current genealogists except as combined data, because individual data from each census between 1911 and 2001 will only become available 92 years after that census was done.8 And, furthermore, for at least the two census-takings beginning with the 2006 census, genealogists working 92 years from now will only be able to access the patchwork of records for those individuals who gave their consent to this access in the 2006 census and who decide to give it in the next census.9 This patchwork of availability seems the likely situation for all future censuses.10
The Globe and Mail has followed the movement of affected individuals to “opt out” of the new Ontario adoption information regime. See Erin Anderson, “Few People Push to Maintain Privacy as Ontario Set to Open Adoption Files,” Globe and Mail, May 26, 2009; available