Section 36 - Disclosure of Archival or Historical Purposes
Section 36 states the circumstances under which the archives of the government of British Columbia or of a public body may disclose personal information or cause personal information in its custody or under its control to be disclosed.
Section 36 of the Freedom of Information and Protection of Privacy Act
The archives of the government of British Columbia, or the archives of a public body, may disclose personal information or cause personal information in its custody or under its control to be disclosed for archival or historical purposes if
- the disclosure would not be an unreasonable invasion of personal privacy under section 22,
- the disclosure is for historical research and is in accordance with section 35,
- the information is about someone who has been dead for 20 or more years, or
- the information is in a record that has been in existence for 100 or more years.
This section recognizes the unique problems faced by archives of the government of British Columbia or the archives of a public body in complying with both the access and privacy components of the Act. Archives have legal custody of enormous volumes of records to which the public has a right of access. Many of these records contain very sensitive personal information. Section 36 provides four circumstances under which an archives may legally disclose personal information at its discretion. Archives are not obliged to disclose personal information under this section.
- The archives of the government of British Columbia or the archives of a public body shall make every reasonable effort to provide clients with access to personal information, where such access is not prohibited by the Act or any other legislation.
- When determining whether to provide access to a record containing personal information, an archives should consider the age of the record in question in the following manner:
- If the requested record is less than 100 years old, and it cannot be determined that all the individuals identified in the record have been deceased for 20 or more years, an archives should consider whether disclosure would be an unreasonable invasion of personal privacy under section 22. In particular, an archives should determine whether any of the provisions of subsection 22(4) apply. If they do not, an archives should consider ALL of the relevant circumstances pursuant to subsection 22(2), and not just the eight which are listed.
- If the record is 100 years old or older, that record should be designated "Open" for public access and routine access should be provided, unless another exception to disclosure applies.
- If the requested record is less than 100 years old, an archives should attempt to determine whether all the individuals identified in the record have been deceased for 20 or more years. If so, and no other exceptions to disclosure apply, that record should be designated "Open" for public access, and routine access should be provided.
"Archival purposes" means any legitimate use which can be made of archival records (including genealogical and family research, statistical and quantitative analyses, sociological studies, land claims research, academic pursuits, litigation, and background for films and books), as well as any of the functions normally performed by, for or within an archives (including scheduling, selecting, preserving, arranging and describing records, and making them available for use).
"History" is defined as a continuous, usually chronological, record of important or public events; the study of past events, especially human affairs; a systematic or critical account of research into a past event or events [OED].
A disclosure for "historical purposes" would, therefore, be for use in the study of a subject based on the analysis of that subject's development over a period.
Most requests for access to archival records begin as informal requests. Paragraph 36(a) allows an archives to utilize the analytical framework provided in section 22 to determine whether informal access to personal information contained in the requested records would be an unreasonable invasion of a third party’s personal privacy.
Subsection 22(2) requires public bodies to consider a number of factors in making this determination. Subsection 22(3) lists circumstances in which disclosure of personal information is presumed to be an unreasonable invasion of privacy. Subsection 22(4) gives a variety of other circumstances in which disclosure is not considered to be an unreasonable invasion of privacy. For example, if the person concerned gives consent to the disclosure [paragraph 22(4)(g)] or if the personal information will be used for research [paragraph 22(4)(d)], then the disclosure does not result in an unreasonable invasion of privacy. See section 22 for more information.
- A researcher requests access to a file containing correspondence to and from the Office of the Premier, 1935-1940, concerning the construction of a new road. The correspondence includes the names and addresses of people who submitted letters and received replies. Due to the age of the records (over 50 years – the authors of the letters may either be deceased, or will likely have moved), and the low sensitivity of the subject matter (a citizen’s views on the desirability of a new roadway), an archives could provide informal access on the basis that the disclosure of the personal information contained in the records would not be an unreasonable invasion of anyone’s personal privacy.
- A client requests a copy of the coroner’s file regarding his mother. The mother died in a fire in 1989. The client is able to prove that the deceased was his mother, which is a highly relevant circumstance in this case, and the file is disclosed to him.
As with the previous example, the Archives considers all relevant circumstances, including the age of the records (over nine years), the relationship of the applicant to the third party (third party’s son with compassionate interests) and concludes under section 22(2) that disclosure would not be an unreasonable invasion of the third party’s personal privacy.
Both parts of paragraph 36(b) must be satisfied for the disclosure to be permissible.
A disclosure for research into past events or human affairs would fall under the category of disclosure for historical research.
Section 35 of the Act permits disclosure for research or statistical purposes. The researcher must fulfill certain conditions and sign a research agreement that sets down the requirements for protecting the personal information disclosed for this purpose.
See section 35 of the Manual for more information.
- An academic doing research on poverty in British Columbia during the early 20th century requests access to "indigent files" (case files generated by the Provincial Secretary's Office between 1910 and 1925). These files were transferred to the legal custody of BC Archives several years ago. BC Archives might authorize the disclosure of these files to the academic for historical research as long as the historian signed a research agreement which met the requirements of section 35 of the Act.
In circumstances where the date of death is not provided by the applicant, the archival institution should:
- satisfy itself that the person has been deceased for 20 or more years by examining appropriate documentation (e.g., a death certificate or a newspaper death notice). The archives of the government of British Columbia Historical Vital Events Indexes may be consulted to determine if the individual died in B.C. more than 20 years ago.
- determine if the requested records may contain a date of birth. Using this date, and the average life expectancy in B.C., an archives can determine whether the individual has been deceased for 20 or more years.
- determine if the age of the records themselves, combined with the average life expectancy in B.C., may be used to ascertain if the individual has been deceased for 20 or more years.
Archival institutions must not release the personal information of family members or other people who are still alive along with that of the deceased person. They must also exercise caution in releasing information about the deceased person which might be embarrassing or hurtful to family members still living or which might be an invasion of their privacy.
There may be circumstances where the identified individual has been deceased for more than 20 years, but the personal information should still be withheld from disclosure. Archival institutions balance the protection of the privacy of these individuals against the public interest in disclosure. See section 22 of the Manual for more information regarding disclosure harmful to personal privacy.
Medical, psychiatric or institutional records detailing congenital diseases or defects, to protect the privacy of the individual’s descendants.
Police records which identify confidential informants, particularly in an ethnic context (Doukhobors, Asian gangs), to protect the safety of the informants’ families.
This paragraph recognizes that the sensitivity of the personal information decreases over time and that disclosure is unlikely to result in an invasion of anyone's privacy after 100 years. Nevertheless, public bodies should consider this possibility, when deciding on disclosure under this paragraph.
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Last updated: July 24, 2007