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Access and accessibility to Canadian vital event records Hemmings, Michael A. 1993

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We accept this thesis as conformingACCESS AND ACCESSIBILITY TO CANADIAN VITAL EVENTRECORDSByMICHAEL A. HEMMINGSB.A. University of Manitoba, 1986B.Th. Canadian Nazarene College, 1986M.Div. Vancouver School of Theology, 1987M.Th. Vancouver School of Theology, 1990A THESIS SUBMITTED IN PARTIAL FULFILMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF ARCHIVAL STUDIESinTHE FACULTY OF ARTS(School of Library, Archival and Information Studies)THE UNIVERSITY OF BRITISH COLUMBIA10 September 1993© Michael A. Hemmings, 1993In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)Deta#4144ef+t--4, L.iloar A rekived I;Corniette,, Stdies SchoolThe University of British ColumbiaVancouver, CanadaDateDE-6 (2/88)ABSTRACTThe transfer of copies of vital event records into a government archivesrepository is necessary not only to ensure their ongoing preservation, but alsoto provide access and accessibility to them for all researchers in an appropriatesetting. At present all vital event records gatekeepers in Canada, except two,do not have in place a system providing for such regular transferral. Thecentral reason for this lack of process is the assumption that vital event recordsare somehow different in kind, and not just in type, from other public recordsthat contain personal information. This thesis evaluates that assumptionthrough an analysis of the history of vital statistics legislation and acomparative study of the privacy regime of that legislation with the legislativeregime of access to information and privacy. Having done these two studies,the thesis then recommends a way in which legal transfer from the gatekeepersto the repository can be achieved. That recommendation is, first, that alldiscussion regarding access must be accomplished before their acquisition.Secondly, their acquisition and accessibility must be based upon the expirationof time—limits.11TABLE OF CONTENTSAbstract ^ iiTable of Contents ^  iiiAbbreviations  ivAcknowledgements ^ vIntroduction ^ 1Chapter 1: History of Vital Statistics Legislation ^ 7Chapter 2: Vital Event Records and Access to Information andPrivacy ^  27Chapter 3: Archival Access and Accessibility to Vital EventRecords ^  50Conclusion ^  75Appendix A  80Appendix B ^  83Appendix C  87Appendix D ^  92Bibliography  95111ABBREVIATIONSProvincesAlta ^  AlbertaBC  British ColumbiaMan  ManitobaNB ^ New BrunswickNfld  Newfoundland and LabradorNS  Nova ScotiaNWT ^  Northwest TerritoriesOnt OntarioPEI  Prince Edward IslandQue ^ QuebecSas  SaskatchewanYuk  YukonActsAA ^ Amendment ActRS  Revised StatuteSLA  Statute Law AmendmentVSA ^  Vital Statistics ActivACKNOWLEDGEMENTSMention must be first be made of Daniela, whose long—suffering demeanourand support for the work on the thesis is best summed up by her statement:"Just when is that damn thing going to be out of my house?" Her ability onthe computer is great and is very gratefully acknowledged.Second, Walter Meyer zu Erpen, records manager at the British ColumbiaArchives and Records Service, read various portions of the text. His readingand suggestions is also acknowledged.Finally, I am very grateful to Terry Eastwood for helping me to mentally'massage' the ideas and concepts that I knew intuitively needed to be addressedin order to get them down on paper. I am also grateful for Terry's patient andinvaluable help in the mad rush at the end to get everything completed ontime.VINTRODUCTIONThe goal of this thesis is to recommend a method for the legal transferof Canadian vital event records into archives repositories. This study is timelyfor a number of reasons. First, the new information regime that is being putin place across Canada through access to information and privacy (ATIP) isforcing all government agencies to re—evaluate their access policies. With thecreation of ATIP, pressure is being applied to vital event records gatekeepers'to justify the long—standing habit of considering vital event records as differentfrom other public records containing personal information. In exposing theissues involved in making vital event records open and accessible to the publicand accessible, this study should be valuable to both gatekeepers and archivistsas they struggle with the implementation of ATIP statutes and regulations.Second, because few vital event records have actually been transferredto archives repositories there is a need to establish the access status of theserecords in order to facilitate their legal transferral and archival accessibility.Finally, this study fills a gap in archival knowledge because this question has1 Reinier Kraakman, Gatekeepers: The Anatomy of a Third—Party Enforcement Strategy, Law and Economics Workshop Series: no. WSXII-3.16 October 1985, ([Toronto]: Law and Economics Programme, Faculty of law,University of Toronto, [1985]). Kraakman defines gatekeepers as persons whocontrol access (the gate) to either physical items such as controlled substancesor non—physical items such as information. With the use of this term todescribe generally those who control access to vital event records we includevital statistics divisions in every jurisdiction and specifically to the head ofthose divisions variously named as directors, division registrars, or registrarsgeneral.1never been carefully examined from an archival perspective.In fact, the only Canadian study that has been done examines theadministration of Ontario's system of registration of vital events up to 1926.2Historians in Britain have been similarly interested in the origins of thesystematic civil registration of vital events and the larger significance of themovement to garner population statistics beginning in the nineteenth century.3The primary source for materials to produce this study is vital statisticslegislation in Canada from all jurisdictions.4 There is also some importantmaterial available through the Vital Statistics Council for Canada, which hasexisted since July 1945.5 The Council's unpublished minutes of its yearlymeetings and reports of its conferences have proved most useful. Variousarticles and books, particularly from legal literature, have been used wherevera connection was seen that would illuminate a particular point. One otherhelpful source of information was a 1991 survey undertaken by the BritishColumbia Archives and Records Service (BCARS) of disposition practises for2 George Emery, "Ontario's Civil Registration of Vital Statistics, 1896-1926:The Evolution of an Administrative System." Canadian Historical ReviewLXIV, no. 4 (1983): 468-493.3 For example: John M. Eyler, Victorian Social Medicine: The Ideas and Methods of William Farr (Baltimore: Johns Hopkins University Press, 1979)and W.M. Frazer, A History of English Public Health, 1834-1939 (London,England: Bailliere, Tindall and Cox, 1950).4 By "jurisdiction" is meant legislative jurisdiction. This definition includesprovinces, territories and the federal government.5 See: Canada, Privy Council 4851, July 31, 1945. Privy Council OfficeRecords, R.G. 2, vol. 1907, National Archives of Canada.2vital events records in Canada. One major source of information that wouldhave been helpful for the thesis was unavailable. This was the administrativerecords of the gatekeepers. If they had been available, the thesis would havebeen able to confirm in a direct way the reasons for legislative changes,especially during the crucial period of the 1940s.This study first examines the history of vital statistics legislation inorder to determine the character of past access policies and attitudes ofgatekeepers towards access. This historical examination determined thequestions or issues to pursue in the next two chapters which discuss thechallenges presented by ATIP and the question of disposition of vital eventrecords.What then are vital event records and why are they important? Theserecords are created in the following manner.6 Using Carol Couture and Jean—Yves Rousseau's diagram' of the life of a document we can show the processat work that creates, for example, a birth registration (record). The process isas follows.Birth Registrations6 The process of such creation may not be precisely the same in alljurisdictions. This particular presentation is based upon the process as itoccurs in the system created by the gatekeepers of British Columbia's vitalevent records.7 Carol Couture and Jean—Yves Rousseau, The Life of a Document (Montreal:Vehicule Press, 1987), p. 51.31) Analysis: What is needed? Registration of births.2) Conception: Idea: need multi—user form.3) Composition: development of form with questions.4) Print/reproduction: multiplication of copies of the form5) Storage: Blank forms waiting to be filled out6) Distribution: registrants pick up blank forms7) Receipt: birth registration form sent to a vital statisticsoffice8) Filing:(a) Placed in sequential order as received (per year)^(b)and form and accompanying records microfilmed.(c) reference placed in computer and microfiche index(d) paper original sent to permanent storage9) Utilization: Used by either state or subject(s) in^therecord for evidential reasons. For example, proving^citizenship.10) Retrieval: possible changes (adopted child, change ofname, legitimated through marriage).11) Permanent retention: paper original, microfilm, computerindexPermanent retention of these records at the present time includes retention ofpaper originals, the microfilm copy and the machine—readable index.However, permanent preservation of all copies of such records willcontinue to be unrealistic due to the expense of holding such records instorage. The paper originals, once they have been clearly and properlyanalyzed and examined by a records analyst or archivist and then microfilmedaccording to appropriate standards, can be destroyed. Three copies of eachmicrofilm roll needs to be made. Two of these copies can be given to therepository: one for access by users in the repository and one held as a securitycopy in a secure, environment—controlled vault. The third copy is necessaryfor on—going use by the vital statistics office itself.Vital events are specific events that are recognised by the state as4events which provide evidence for the eligibility of rights for a person living ina specific country. By vital event records is meant operational records. Theserecords include core records (births, marriages and deaths), secondary (alsocalled amendments) records (stillbirths, adoptions, divorces, changes of names)and supporting or tertiary records. The latter include hospital returns,physicians or nurses notifications of birth, school returns, periodic checks ofmarriage registrations, coroner's reports, motor—vehicle accident reports,cemetery returns, statutory declarations and any other evidential records usedto procure either a core vital event registration or an amendment to thoserecords.8 Each of these classes of vital event records is a separate series.These records are important not only for the individual but also for thestate. The state needs correct and up—to—date information about the status ofinhabitants in order to provide for the rights allowable to each person (such asuniversal health care, education, pensions and so on) whether citizen, landedimmigrant, or other. According to the first Dominion Bureau of StatisticsReport in 1921, vital statistics are "needed [not only] in the prevention ofcrime and in facilitating the transfer of property, but they lie at the basis ofpublic hygiene and of all study of the most important asset of any community-8 See British Columbia, Provincial Board of Health, Vital Statistics of theProvince of British Columbia Seventy—sixth Report for the Year 1947,(Victoria: Provincial Board of Health, 1947), D37.5its people. ?!9 The importance of these records for both citizens and the state isquite clear. Since their importance is not in doubt, what are the two issues ofaccess and accessibility with which this thesis is concerned?The thesis is ultimately concerned with describing, first, how anarchives repository can be involved in providing for the right of access tothese records and secondly how public availability or accessibility to vitalevent records in an archives repository can be achieved. The argument againstaccess and accessibility has usually been formulated in the following manner.Custody of vital event records cannot be given to an archives repositorybecause the personal information contained in the records is of a specialnature. It is different from all other personal information because it isconsidered to be part of an 'inviolable sphere' around every person and such asphere would surely be punctured or even exploded by allowing transfer toarchival custody and open access. The working out of a transfer and accessregime for these records as similar to those for other public records thus needsto address this argument.9 Canada, Dominion Bureau of Statistics, Vital Statistics 1921: First AnnualReport (Ottawa: F.A. Acland, Printer to the King's Most Excellent Majesty,1923).6CHAPTER ONEHistory of Vital Statistics LegislationThe history of access to vital event records may be divided into threephases: 1864-1918, 1918-1947 and 1947 to the present. The first two phasesfeatured open access to the core vital event records of births, marriages, anddeaths, whereas in the last phase access became restricted. The first phasebegins with the first civil registration system in Canada outside Quebec. NovaScotia has this distinction in that its legislation was passed prior toConfederation in 1864. This act gave broad rights of access in the followingterms.All persons shall be entitled at all seasonable [sic, reasonable]hours to search these records, and to require and to receiveextracts duly certified by the financial secretary, which shall beevidence of the entry certified and prima facie evidence of thefacts asserted or claimed in the entry. 1This access statement was the basis for all other access provisions inother jurisdictions in Canada 2 except Quebec and Newfoundland. The basisNS, VSA, 1864, c. 120, sec. 44. Each act and jurisdiction from whichan act comes that is listed in a footnote will be designated by abbreviations (p.iv). In the interests of brevity the year of the reign of a particular monarchwill not be listed in the footnotes. Full bibliographic notes can be found in thebibliography.2 Ont, VSA, 1868-69, c. 30; BC, VSA, 1872, no. 26; NB, VSA, 1887, c.V; Yuk and NWT, VSA, 1888, no. 6; Man, VSA, 1890, c. 29; Sas, VSA,1898, c. 14; PEI, VSA, 1906, c. 6; Alta, VSA, 1907, c. 13.7for public access to these records in Quebec was, and remains, this statementfrom the civil code: "The depository of either of the registers [in a church orwith government] is bound to give extracts thereof to any person who mayrequire the same; and such extracts, being certified and signed by him, areauthentic."3 In Newfoundland, while the wording is similar to the 1864 NovaScotia provision, access to vital event records has not followed the sameprogress toward restrictiveness that is seen elsewhere in Canada. Even after1949, Newfoundland has retained a more open access policy regarding theserecords than the rest of Canada.4Only Manitoba in 1912 and Alberta in 1916 moved to restrict rights byrequiring petitioners to produce "satisfactory evidence that it is not for anyunlawful or improper purpose"5 that the petitioner seeks access. This is thefirst hint in legislation that this kind of information might be used againstindividual or collective interests. The usual procedure at this time was toprovide petitioners with extracts from the registrations or to allow them tosearch through the registers and registrations themselves, and presumably maketheir own recordings. This procedure eventually gave way to one in which thesearch was done for the petitioner. Generally speaking the unfettered right ofaccess and the right to obtain certified attestations of registrations existed in allQue, Le Code Civil Annote, 1866, art. 50.4 Nfld, VSA, 1892, c. 28; Nfld, AA, 1977, c. 101.5 Man, VSA, 1912, c. 97, sec. 6(1); Alta, VSA, 1916, c. 22, sec. 38(1).For Manitoba's repeal of this clause see Man, VSA, 1933, c. 51, sec. 7.8provinces from confederation until the second decade of the twentieth century.The need to coordinate vital statistics legislation first came to light in1893 when the matter was discussed in the context of a cholera epidemic, butit received no serious consideration until 1912. In that year, one of therecommendations of a departmental commission of investigation in the federalDepartment of Trade and Commerce, in which the Census and Statistics officewas placed, proposed that a conference be held to discuss mutual concernsabout vital statistics in Canada.6 The conference was not actually held until1918, but it marks an important departure point as regards access to vital eventrecords.This 1918 conference was the first of five such conferences whichculminated in the adoption of a model vital statistics act in 1947. R.H. Coats,the Dominion Statistician, characterized the purpose of the meeting as"completing plans for a system of vital statistics for Canada."' In Coats'view, the streamlining of administration and establishment of standards was6 Ernest H. Godfrey, "History and Development of Statistics in Canada,"in John Koren ed., The History of Statistics: Their Development and Progressin Many Countries, (New York: Macmillan, 1918): 195-196. Canada,Dominion Bureau of Statistics, Report of the Conference on Vital StatisticsBetween Representatives of the Dominion and Provincial Governments, 1918 (Ottawa: Dominion Bureau of Statistics, 1918): 19.7 R.H. Coats, "Co—ordination of Vital Statistics in Canada," OpeningAddress to the 1918 Conference, Dominion of Canada, Report of theConference on Vital Statistics Between Representatives of the Dominion andProvincial Governments. Ottawa: Dominion Bureau of Statistics, p. 5.Hereafter cited as Report (1918).9needed to protect civil rights and to assist in the administration of publicsanitation and the prevention of crime! To satisfy these needs, thegatekeepers drafted a model vital statistics act which, it was hoped, mostjurisdictions would enact.The access provision of this model act maintained the principles firstadopted in the 1864 Nova Scotia act, but stated them more clearly. The modelact's provision for access was:Any person shall be entitled at all reasonable hours on paymentof the prescribed fee and on signing an application in theprescribed form, to have search made of the record of a birth,marriage or death kept in the Office of the Registrar—General.(2) The Registrar—General shall, when requested, give acertificate of the details of any birth, marriage or death of whichthere is a record in his office on payment of the prescribed fee.9In particular, this provision made it clearer that a certificate would contain allthe information recorded on the original registration. i° In fact, Ontario,Manitoba and British Columbia already had a provision like this in their acts.Nova Scotia, Saskatchewan, Prince Edward Island, and Alberta would followsuit soon after the conference, while New Brunswick and Quebec did notCoats, "Vital Statistics in Canada," pp. 5-7.9 Report (1918), "Model Vital Statistics Act," section 3(1,2), p. 26.I° Report (1918), pp. 37-44.10change their legislation."Along with this restatement of public and open access to vital eventrecords, the model act contained a provision designed to increase theaccessibility of vital event records in the custody of private organizations,many of whom had done the registration of vital events in the absence ofgovernment involvement. Organizations such as churches, cemeteries,companies, and historical societies were given the opportunity to file theirrecords with the registrar—general. Any entity:in possession of any record of marriages, births or deaths whichmay be of value in establishing the genealogy of any resident ofthis province.. .may file without expense to them such record ora duly authenticated transcript thereof with the Registrar—General, and it shall be the duty of the Registrar—General topreserve such record or transcript and to make a record andindex thereof in such form as to facilitate the finding of anyinformation contained therein. Such record and index shall beopen to inspection by the public, subject to such reasonableconditions as the Registrar—General may prescribe.12Manitoba was the first to adopt a provision like this one in 1887. Fiveother provinces followed Manitoba's lead the year following the 1918conference and British Columbia was the last in 1933.13 Alberta,Newfoundland, New Brunswick and Quebec had no need of such a provision" Ont, VSA, 1908, c. 28, sec. 7; Man, VSA, 1912, c. 97, sec. 6; BC,VSA, 1913, c. 81, sec. 6; NS, VSA, 1919, c. 3, sec. 8; PEI, VSA, 1919, c. 10,sec. 5; Sas, VSA, 1919-20, c. 11, sec. 7; Alta, RSA, 1922, c. 24, sec. 38.12 Report (1918), section 5(5), pp. 26, 27.13 Man, AA, 1887, c. 14, sec. 2,3; PEI, VSA, 1919, c. 10; Ont, VSA,1919, c. 23, sec. 12; NS, VSA, 1919, c. 3, sec. 9(5); Sas, VSA, 1919-20, c.11, sec. 12(1); BC, VSA, 1933, c. 73, sec. 20.11because the procedure in those jurisdictions had always prescribed that a copyof all vital event records be given to government.14Interestingly, the first hint of restrictiveness occurred in the sectiondealing with vital event records created by bodies other than government,copies of which were given over to government. The model act stated that"Such record . . . shall be open to inspection by the public, subject to suchreasonable conditions as the Registrar-General may prescribe."15 Fourjurisdictions, Ontario, Saskatchewan, Nova Scotia and Prince Edward Islandenacted this part of the model 1918 act.16 It is not clear why these recordsare the first to have any restrictions attached to them instead of those referredto in the general access section. Perhaps it was felt that it was appropriate tohave the capability to set restrictions if the organizations holding them couldconvince the gatekeepers of the need.Between the drafting of the model act in 1918 and its completerestructuring in 1947, concern arose over giving access to vital event recordsthat are changed by secondary vital events. These events cause changes to theoriginal registrations. These include occurrences of stillbirths, illegitimacy,divorce or annulment of marriage, adoptions, and change of name. Change of14 Que, Civil Code, 1866, Arts. 45-47; Nfld, VSA, 1892, c. 28, sec. 5,6;NB, RSNB, 1903, c. 54, sec. 7; Alta, VSA, 1907, c. 13, sec. 11.15 Report (1918), sec. 5(5), p. 27. My emphasis.16 Ont, VSA, 1919, c. 23, sec. 12(2); Sas, VSA, 1919-20, c. 11, sec.12(1); NS, VSA, 1919, c. 3, sec 9(5); PEI, VSA, 1919, c. 10, sec. 6(e).12name may occur when a child is adopted or when a person voluntarily choosesat some point to change his or her name. Recording secondary events alteredthe original record in some way. The gatekeepers began to realize that someof this information and, in order to solve these problems, several provincesenacted restrictions on access. The cases of illegitimacy and adoption bestillustrate the problems, but complications also arose for stillbirth and divorce.No restrictions applied to records of stillbirth and divorce prior to1948. The 1918 model act did not mention the records of divorces.Saskatchewan made records of divorce explicitly accessible. British Columbiamaintained a publicly searchable register of divorces, and noted the event of"divorce" on the original marriage license!' In Ontario and Alberta, aprovision was made in the act simply for the receiving of information ofwhatever sort concerning divorces "as the Registrar General required."18Stillbirths were mentioned in the model act of 1918. By that time, it was17 Sas, AA, 1921-22, c. 16, sec. 4; BC, AA, 1935, c. 87, sec. 2 and BC,RSBC, 1948, c. 357, sec. 33(1). For British Columbia's register of divorcessee also Department of Trade and Commerce, Dominion Bureau of Statistics:Vital Statistics Division, Verbatim Report of the Fifth Dominion—ProvincialConference on Vital Statistics (Ottawa: Published by the authority of the Hon.James A. MacKinnon, M.P., Minister of Trade and Commerce, 1948): 253.The author of the thesis was not able to locate the reports of the otherconferences. This particular report was found in the Legislative Library inVictoria.Ont, AA, 1931, c. 21, sec. 2; Alta, AA, 1924, c. 28, sec. 8.13generally agreed to register stillbirths as both births and deaths.°The treatment of information about the marital status of parentsconstitutes the first major step toward restrictive access to vital statisticsrecords. The fact of marital status, or lack of it, was considered an importantaspect of birth information for many years both before and after the drafting ofthe 1918 model act. The model act included the already quite commonstatement "the Division Registrar shall write the word 'illegitimate' in thecolumn for the name of the child immediately under the child's name."2°After 1918 many jurisdictions required the gatekeeper to re—register births aslegitimate if the parents subsequently married. A notation was made that thechild had been registered under that section of the act, thus more subtlyrecording the fact of illegitimacy.21 Before 1948, some jurisdictions adopteda policy that no certificates would be given out to "casual inquirers orbusybodies," who had "no objective in view other than that of annoying the19 Man, VSA, 1912, c. 97, sec 27; NS, AA, 1914, c. 44, sec. 1; Alta,VSA, 1916, c. 22, sec. 29; PEI, VSA, 1919, c. 10, sec. 36; Ont, VSA, 1919 c.23, sec. 28; Sas, VSA, 1924-25, c. 6, sec. 56.20 Report (1918), section 31, p. 30. See: Ont, VSA, 1875-76, c. 2, sec.11; Alta, VSA, 1907, c. 13, sec. 15; NS, RSNS, 1908, c. 1, sec. 16.21 Examples: BC, VSA, 1913, c. 81, sec. 7; Alta, VSA, 1916, c. 22, sec.18; Sas, RSS, 1940, c. 36; NS, VSA, 1952, c. 8.14parties concerned," by revealing the fact of illegitimacy.22Like the question of illegitimacy, adoptions were also dealt with atdifferent times and in different ways by the different jurisdictions. Forexample, British Columbia and Saskatchewan simply made a notation on theoriginal birth registration that a child had been adopted.23 Manitoba made asimilar notation but also registered the adoption in a separate register,24while Ontario made the notation but also received certificates or court ordersfrom another department altogether.25 British Columbia granted access toregistrations of adoptions for a brief time between 1933 and 1936. NovaScotia made no statements regarding adoption records until after 1948.26 In1930, Saskatchewan enacted a clause that demanded that no certificate begiven out that revealed the names of the natural parents, and Alberta enacted asimilar clause in 1942.2722 British Columbia. Sixty—Sixth Report of Vital Statistics of the Provinceof British Columbia (Victoria: Charles F. Banfield, Printer to His Majesty,1937), p. J24. British Columbia. Sixty—Seventh Report of Vital Statistics ofthe Province of British Columbia (Victoria: Charles F. Banfield, Printer to HisMajesty, 1938), p. 1124. Examples: Sas, AA, 1930, c. 14, sec. 8; BC, AA,1938, c. 64, sec 7.23 BC, AA, 1921, c. 70, sec. 3; Sas, RSS, 1940, c. 36, sec. 51(3).24 Man, AA, 1931, c. 55, sec. 10.25 Ont, SLA, 1941, c. 55, sec. 42.26 BC, VSA, 1933, c. 73, sec. 31; BC, RSBC, 1936, c. 302, sec. 32; NS,AA, 1951, c. 56.27 Sas, AA, 1930, c. 14, sec. 8; Alta, AA, 1942, c. 21.15While these sorts of restrictions were applied to access to records ofsecondary vital events, only two kinds of restriction were applied before 1948to the core vital events records of births, marriages and deaths. On the onehand, certain pieces of information would be given out on certificates such asdate and place of birth in the case of birth records.28 On the other hand,many jurisdictions followed the lead of Manitoba and Alberta by including aprovision that "in every case the applicant [for a certificate] shall satisfy theRegistrar—General that the search is not being made for any unlawful orimproper purpose."29 Nova Scotia adopted a provision like this in 1908 butrepealed it in 1919.30 Of course, in every jurisdiction petitioners had to paya prescribed fee.'The problems which had accumulated before the Second World Warcould no longer be ignored as the war drew to a close. Realizing this, thefederal government established the Vital Statistics Council of Canada whosepurpose was "to provide opportunity for provincial and federal officials todiscuss jointly problems of registration and of the collection and compilation ofvital statistics, with the object of securing greater uniformity and28 Ont, SLA, 1927, c. 28, sec. 34; NS, AA, 1941, c. 21, sec. 1; PEI, AA,1945, c. 35.29 Sas, AA, 1932, c. 6, sec. 2(1); PEI, VSA, 1932, c. 11, sec. 5(a).30 NS, VSA, 1908, c. 1, sec. 31; NS, VSA, 1919, c. 3.31 Report (1918), section 3, p. 26.16comparability.' Post—war efforts of the members of the Council would alsoaddress access questions.In May 194733, the Vital Statistics Council asked the Minister ofTrade and Commerce to call a fifth conference on vital statistics. TheMinister, J.A. MacKinnon, did so but also called upon the Vital StatisticsDivision of the Dominion Bureau of Statistics to draft a working copy of anew model vital statistics act for the conference. The final version of thereworked act, with the help of the Uniform Law Commission of Canada wascompleted in 1949.34The conference aimed at a total restructuring of the earlier model act,and therefore concerned itself with adopting uniform language, procedures and32 Canada. Department of Trade and Commerce, Dominion Bureau ofStatistics, Vital Statistic Division, Fifth Dominion—Provincial Conference onVital Statistics, December 1-4. 1947, "Draft Model Vital Statistics Act,"Introduction, Appendix C (Ottawa: Pub., by the authority of Hon. James A.MacKinnon, M.P., Minister of Trade and Commerce, 1948), p. 347.33 It was in 1947 that the delegates met and made their changes to thelegislation. It was not until 1949 that the model act was finalized in terms oflegal language and it was officially promulgated as the new model act for vitalstatistics legislation. Hence the designation in this paper of the years 1947—1949 when referring to the foundation event for the development of thislegislation up to the present. This date shall be used wherever the entireprocess of formulation and legal editing is referred to while when theconference itself is referred to the year 1947 will be used.34 Conference of Commissioners on Uniformity of Legislation in Canada,"An Act Respecting The Registration of Births, Marriages, Deaths and OtherVital Events," in Proceedings of the Thirty—first Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada,Appendix G (Calgary, Alberta: 1949), 46-70. See Appendix A for an extractof this Act regarding searches and issuance of certificates and copies.17requirements for registration of vital events. A large part of their concern wasdevoted to a wholesale altering of the access policy for vital event records.This conference in effect approved placing more severe restrictions on publicaccess than had consciously been done up to that point. Unconsciously, manyof the gatekeepers had been struggling with the new problems associated withsecondary event records, but alone were unable to come up with entirelyadequate solutions. One such effort was to assume a two—tiered access systemin the vital statistics legislation. For example, British Columbia's attorney—general had proffered the opinion that in answer to requests the registrar couldsimply state that a record existed. If the searcher sought actual informationfrom the record, he or she would have to go through a second process ofapplying for a certificate.35The conference participants heard the British Columbia proposal, andeventually adopted it. They also decided to continue reliance on the ad hocmeasure of denying access to persons who could not give enough informationon the application forms when they made their requests. One delegate wantedto delete the access provision altogether.36 Several delegates expressedconcern about the sensitive nature of the information contained in vital eventrecords. There was general agreement that vital event records must be treatedas confidential records to protect the interests of the subjects of the records.35 Verbatim Report, (1948), p. 228.36 Verbatim Report, (1948), p. 227, 228.18There appears to have been no public outcry for tighter restrictions. Rather,these persons who administered the law took it upon themselves to make thechanges in order to protect records subjects from possible abuse of informationcontained in the records. Where once vital event records were considered tobe public records in the sense of openly accessible to the public, growingconcern about the potentiality for harm to personal and private affairs by suchopen access brought about a severe change in the rules for access. 37Ultimately, the redrafted model law adopted by the conferencecontained the two—tier British Columbia procedure to distinguish conditions forsearches in one provision and for issuing certificates and copies of registrationsin another. The rules governing searches required persons to furnishsatisfactory information to the gatekeeper, pay a fee, and satisfy him or herthat they had no "unlawful or improper purpose"' in mind. If theseconditions were met, the gatekeeper would provide confirmation of registrationof birth, stillbirth, marriage, death, adoption, change of name, dissolution orannulment of marriage, baptism, or burial, and give the registration number.In effect, then, the petitioner had to give sufficient information to allow thegatekeeper to conduct a search, satisfy the gatekeeper that the reasons for the37 Verbatim Report, (1948), pp. 226-228.38 Model Act, (1949), sec. 30. A copy can be found in the Proceedings ofthe thirty—first meeting of the Uniform Law Commission, 1949. See AppendixA for an extract of this Act regarding searches and issuance of certificates andcopies.19search were proper, and pay a fee, and in return would merely know that saidevent was registered, and no more. A very large measure of discretionarypower remained with the gatekeeper. Indeed, these proposals fell little short ofarbitrariness.This process of having gatekeepers search for merely the fact that acertain event occurred might have been used by persons to apply forcertificates or for copies of the registrations, but usually that process wasdistinct from the rules for certificates and copies of registrations. A proposalat the conference to provide separate rules for short and long form certificateswon favour.39 The short forms applied only to registrations of births,marriages, and deaths. The proposed rules prescribed the precise pieces ofinformation to go on the short form,4° which was in effect like the oldextracts produced in many jurisdictions. As in the first set of rules, petitionershad to furnish sufficient information for a search to be conducted, satisfy thegatekeeper that the reasons for the request were lawful and proper, and pay afee.The delegates decided that long form certificates were not reallycertificates at all, but rather certified copies of the actual registration, whether39 Verbatim Report, (1948), p. 236 ff.4° Model Act, (1949), sec. 31.(1),(3),(5). See Appendix A for an extractof this Act regarding searches and issuance of certificates and copies. See alsoBritish Columbia, Department of Health and Welfare, Vital Statistics of theProvince of British Columbia, Eightieth Report for the Year 1951 (Victoria:Provincial Board of Health, 1951): C45.20the certificate disclosed the full information in the registration or was aphotograph of the original. Access to certified or photographic copies wasseverely limited to persons needing the copy to comply with adoptionlegislation, officers of the crown requiring it in the discharge of duties, orpersons given authority by the competent minister or judge of a court.4'These rules covered birth, marriage, and death records. Death certificateswould only include the cause of death upon the order of the appropriateminister or a judge, and so certified or photographic copies were subject to thesame requirements. It was also proposed that vital event records held bychurches and other non—governmental bodies should be subject to the sameconditions. Furthermore, the records of adoptions, changes to names,dissolution and annulment of marriage were not searchable at all under tier oneprocedures and no certificate would be issued under those in tier two.42Every jurisdiction in Canada, except Quebec and Newfoundland,eventually enacted the terms of the model vital statistics act.43 As a result, noone could search records of adoptions, divorces, name changes or any otherinformation that was not explicitly identified in the act or that officials deemed41 Model Act, (1949), sec. 31.(2),(4),(7). See Appendix A for an extractof this Act regarding searches and issuance of certificates and copies.42 Model Act, (1949), sec. 31. (9). See Appendix A for an extract of thisAct regarding searches and issuance of certificates and copies.43 Ont, VSA, 1948, c. 97; PEI, VSA, 1950, c. 31; Sas, VSA, 1950, c. 13;Man, VSA, 1951, c. 66; NS, VSA, 1952, c. 8; NWT, VSA, 1952 secondsession, c. 6; Yuk, VSA, 1954, c. 38; Alta, VSA, 1959, c. 94; BC, VSA, 1962second session, c. 66; NB, VSA, 1979; c. V-3.21should not be disclosed. But concerns about the secondary events stronglycoloured the rules regarding access to information about births, marriages anddeaths such that the former right of access to the records of core vital eventswas severely restricted. Most remarkably, this situation has existed in mostjurisdictions without substantial change to the present day."There was one attempt to make some major changes to the legislation.In 1976, British Columbia delegates to the annual Conference ofCommissioners on Uniform Law in Canada proposed that the model vitalstatistics act "be reviewed and revised from the point of view of today'sproblems but also to bring the language and forms of the Act up to date."45The British Columbia Commissioners were asked to present a report regardingthe issue, which they eventually did in 1982. They based much of their reporton a study made between 1978 and 1982 by an official of the Division of VitalStatistics in Victoria, W.D. Burrowes, for the Vital Statistics Council ofCanada and Statistics Canada." The report of the Commissioners called for44 There have been minor changes to parts of the entire act by variousjurisdictions. Most of these minor changes have not been related to the accessissue. See Appendix B for the most up—to—date version (1986) of the accessprovisions of the model legislation.45 Uniform Law Conference of Canada, Proceedings of the Fifty—EighthAnnual Meeting (Yellowknife, Northwest Territories, Uniform LawConference, 1976), 34.46 British Columbia Commissioners, "Amendments to the Uniform VitalStatistics Act: Report," Appendix EE, in Uniform Law Conference of Canada,Proceedings of the Sixty—Fourth Annual Meeting (Montebello, Quebec:Uniform Law Conference, 1982), 509-517.22a complete review of existing access provisions. It argued that some of therestrictions were no longer viable "and probably untenable for long in the faceof 'freedom of information' legislation and the Canadian Charter of Rights andFreedoms."47 Continuing on from this first report, a second committee madeup of Commissioners from British Columbia and the federal governmentpresented another more detailed report with recommendations one yearlater."This second report recommended relaxing the provision prohibiting thedisclosure of the cause of death:" It recommended maintaining widediscretionary powers for officials administering the act to avoid fraudulent useof information.50 But, most importantly, the report advised that the highlyrestrictive conditions clashed with the spirit of access to information legislationand deterred use of vital event records to trace family lineage. Finally, afterstating that vital event records are public records, the report declared thatconsiderable thought must be given to relaxing the restrictive access conditionsbecause of freedom of information, to the question of whether the minister' British Columbia Commissioners, "Report, 1982," p. 515. Theiremphasis.48 British Columbia and Canadian Commissioners, "Vital StatisticsReport," Appendix 0, in Uniform Law Conference of Canada, Proceedings ofthe Sixty—Fifth Annual Meeting (Quebec, Quebec: Uniform Law Conference,1983), 277-291.49 British Columbia and Canadian Commissioners, "Report, 1983," p.289. The restriction was relaxed. See sec. 31. (6)(a) of Appendix B.50 British Columbia and Canadian Commissioners, "Report, 1983," p. 290.23should be required to make certain decisions on access or allow the gatekeeperto make all such decisions, and to recognising the fact that a growing numberof people wish to trace their lineage.51Few jurisdictions accepted these suggestions from the 1983 report.Some jurisdictions have accepted the form, but not the substance of the 1986amended model vital statistics act,52 which had been produced throughcooperation between the jurisdictions and the Uniform Law Commission.Others have not accepted either the form or the substance of the 1986 amendedact and have retained the amended versions of the 1949 model vital statisticsact.53 Some jurisdictions have recognised as legitimate a category of searchcalled genealogical,' but have not relaxed the rules to encourage suchsearches.Two jurisdictions have made minor changes to their acts by adoptingsome of the provisions suggested by that report. First, Alberta accepted aslight relaxation by allowing next of kin to acquire information about the cause51 British Columbia and Canadian Commissioners, "Report, 1983," p. 290.52 For example: Man, RSM, 1987, c. V60, secs. 31,32; NS, RSNS,1989, c. 494; Yuk, RSY, 1986, c. 175; PEI, RSPEL 1988, c. V4.53 NWT, RSNWT, 1974, c. V4; Sas, RSS, 1979, c. V7; BC, RSBC, 1979,c. 425; NB, VSA, 1979, c. V3.54 For example: NB, Vital Statistics Act, Reg. 83-104, sec. 3(f); BC, VitalStatistics Act, Reg. 375/90, sec. 9. "For a certified copy, photostatic copy orphotographic print of a registration under section 30(3),(4),(7) or (10) of theAct, where the copy is provided for genealogical research approved inaccordance with an order made under sec 30(12) of the Act."24of death.55 Perhaps the most interesting aspect of the Alberta act is that itallows that certificates, photo—prints, or certified copies to be given out to anyperson if "(a) in the case of subsection (2), 100 years has elapsed since thedate of birth, (b) in the case of subsection (4), 75 years has elapsed since thedate of the marriage, and (c) in the case of subsections (6) and (7), 50 yearshas elapsed since the date of the death or stillbirth as the case may be."56Ontario also made changes to its law. It is noteworthy that Ontario isthe only province in Canada to allow searches of the change—of—name registersunder the same conditions as for births, marriages and deaths. Prior to 15 July1987, a person could only have the indices to these registers searched. Forchanges of name taking place after that date, a certificate with this informationon it would be given to any person.57 Ontario is also the only jurisdiction,outside of Quebec, that actively transfers all original records, not just indices,to the provincial archives after a certain period of time. It also has a legislatedstatement for guiding such transfer:(2) The Registrar General may cause those registrations andrecords that are prescribed, and related indexes and documentsto be transferred to the Archives. (3) The Archivist is authorizedand directed to receive and maintain the registrations, records,indexes and documents transferred under subsection (2) as if55 Alta, RSA, 1980, c. V4, sec. 32(6).56 Alta, RSA, 1980, c. V4, sec. 32(7.1).57 Ont, AA, 1986, c. 9, sec. 11(2) and Ont, RSO, 1990, c. V4, sec. 44(4)and 48(1),(2).25they were transferred under the Archives Act.'Systems of vital event registration serve to protect the rights of citizens.The access policy applying to these systems of record keeping must takeaccount a complexity of apparently conflicting rights. Adoptions, illegitimacy,divorces and so on, illustrate the problem with the open access policy thatexisted until the late 1940s and they tipped the balance away from access infavour of concern to protect sensitive personal information. Since then,Canadian governments have widely instituted access to information and privacylegislation to address the very problems with which the gatekeepers of vitalevent records have had to struggle. It is therefore necessary to put thequestion of access to vital event records in the wider societal concern aboutaccess to information and the protection of privacy.58 Ont, AA, 1990, c. 12. Under sec. (4) the Registrar General retainsprivilege of full access to such transferred records and under sec. (5) theRegistrar General and the Provincial Archivist are empowered to enter intoagreements regarding such transfers. See Appendix C re. questionnaire.26CHAPTER TWOVITAL EVENT RECORDS AND ACCESS TO INFORMATION ANDPRIVACYIn the preceding chapter we saw that the history of vital statisticslegislation reveals a strong concern amongst the gatekeepers of vital eventrecords to protect the privacy of individuals named in those records. Thathistory also reveals that the legislation has not changed substantially since1947-1949 in response to changing needs and attitudes of both governmentand private individuals in Canada. The legislation was completely overhauledin 1947 to take account of a particular view of privacy, which shall bediscussed in this chapter, that still colours the legislation and the attitudes ofthe gatekeepers.We need to discuss this particular view of privacy in the light of recentimplementation of ATIP legislation at provincial and federal levels. However,before this can be done, we need first to discuss ATIP and to make clear anumber of definitions. Through a discussion of these two different legislativeregimes, ATIP and vital statistics, we can answer two important questions.First, is the personal information in records created by vital statisticslegislation substantially the same as personal information created in any otherrecords of government? To put it another way, is the personal informationsupplied in records created by vital statistics legislation the same kind ofpersonal information as that which persons divulge to government under27provisions of other legislation? The second important question is how do thetwo legislative regimes deal with the issues of access and privacy? We canuse the results of this discussion as the basis for a discussion of access to vitalevent records in a repository in the third chapter.What, then, is "personal information"? Before the passage of ATIPlegislation in the 1980s, privacy provisions in any legislation did not explicitlyinclude information such as birth—date, marital status, or sex. ATIP legislationnow lists these items as part of the definition of "personal information". Vitalstatistics legislation does not provide definitions of this nature. We shall haveto look to another source for adequate definitions. The federal Privacy Actdefines "personal information" as "information about an identifiable individualthat is received in any form including, without restricting the foregoing, (a)information relating to the race, national or ethnic origin, colour, religion, ageor marital status of the individual..."1According to the act, such information "shall not, without the consentof the individual to whom it relates, be disclosed by the institution except inaccordance with this section."' Provincial legislation often states the sameprinciple. For example, Ontario's legislation says that officers shall "refuse todisclose personal information to any person other than the individual to whomthe information relates except, (a) upon the prior written request or consent of1 Canada, Privacy Act, 1980-81-82-83, c. P21, sec 3.2 Canada, Privacy Act, 1980-81-82-83, c. P21, sec 8(1).28the individual."3 The ATIP legislation in British Columbia, Quebec, NovaScotia, Newfoundland and Manitoba have similar provisions.4ATIP legislation regards as subjects any person(s) whose personalinformation is in a record. ATIP legislation makes this point positively ratherthan negatively when it says that all citizens and permanent residents (asdefined by the Immigration Act) have a right of access5 to records that containtheir personal information. These persons can have access to "(a) any personalinformation about the individual contained in a personal information bank; and(b) any other personal information about the individual under the control of agovernment institution..." .6^Access to government records in ATIP isgoverned by access rules. These rules are either mandatory or discretionary.Discretionary rules are "introduced by the phrase 'the government may refuseto disclose' which means information may be released by a government3 Ont, Freedom of Information and Protection of Privacy Act, 1990, c.F31, sec 21. My emphasis.4 Que, Statutes of Quebec, 1982, c. 30, sec. 53; BC, Freedom ofInformation and Protection of Privacy Act, Bill 50, 1992 41 Eliz. II, PassedThird reading 23 June 1992, sec 23; Man, Freedom of Information Act,1985-86, c. 6, sec. 41(3)(a); NS, Freedom of Information, c. 11, 1990, sec5(1)(b); Nfld, Freedom of Information and Privacy Act, 1981, c. 5, sec.10(2)(e).5 Such access was first guaranteed in legislation by the Human Rights Act.Canada, Human Rights Act, 1976-1977, c. 33, secs 49-62. Those sections inthe Act regarding such access were repealed in 1980 when the new Access to Information law came into being and reworked to fit that new Act (1980-81—82-83, c. 111).6 Canada, Privacy Act, 1980-81-82-83, c. P21, sec 12(1).29institution when no injury would result..."7 The former "are introduced by thephrase 'the government institution shall refuse to disclose' and gives theinstitution no discretion in invoking an exemption."' An example of thesemandatory rules in the federal Privacy Act is "a government institution shallnot, without the consent of the individual release information..." An examplein access to information legislation is "a government institution shall refuse todisclose any record requested under this Act that contains personalinformation..."10 Mandatory rules for access always occur in the context ofclass tests while those for discretionary rules always occur in the context ofinjury tests.11These mandatory rules are in place in ATIP legislation in order toguard the privacy of the individual as well as to provide for access to records.The fundamental principle that lies behind this legislation is the notion ofcontrol. In some sense individuals are given control over records whichcontain information about them. In principle, individuals have full access torecords that contain such information. No third party can have such access7 Robert J. Hayward, "Federal Access and Privacy Legislation and thePublic Archives of Canada," Archivaria 18 (Summer 1984): 51. His emphasis.8 Hayward, "Federal Access and Privacy," p. 51. His emphasis.9 Canada, Privacy Act, 1980-81-82-83, c. P21, sec. 8(1). My emphasis.1° Canada, Access to information Act, 1980-81-82-83, c. Al, sec. 19(1).My emphasis.11 Hayward, "Federal Access and Privacy Legislation," pp. 50,51.30without the consent of the individual concerned. Thus, the individuals havecontrol over these records in two ways. First, they can control the accuracy ofthe records. Second, they have a limited control over others who might wantto access their personal information.This notion of control over an individual's privacy interests, stemmingfirst from Warren and Brandeis12 and expressed more recently by scholarssuch as Alan F. Westin,13 is precisely how legislators in Canada havedefined privacy in Canadian statutes.14 As one scholar stated the definition inuse in current Canadian law:It is a kind of censorship which allows others to learn about anindividual only that which he desires them to know. Without privacy,however, the control over information is impossible. The fact thatinformation about a person is known only to himself initially and that itcan remain private as long as he desires not to reveal it to others is thebasis of privacy. If the right to refuse information is lost and thecontrol over who may have access to personal data is diminished,privacy no longer exists, and one is no longer in control of one's publicimage."12 Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"Harvard Law Review 4, no. 5 (1890-91): pp. 198, 205 and 218. On p. 218,the authors list as one of their six principles that legislators need to take intoaccount that information about an individual should not be published withoutthe person's consent.13 Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967), p.7. Privacy of the individual is defined as "the claim of individuals, groups,and institutions to determine for themselves when, how and to what extentinformation about them is communicated to others."14 Lori Ferman, "Protecting the Privacy of Personal Information,"(Thesis, Master of Laws, York University, Ontario, April 1987).15 Ferman, "Protecting the Privacy of Personal Information," p. 9.31A study that led to the development of privacy statutes in Ontario stated: "theessential concern of the individual is to maintain the right to limit thedisclosure and subsequent use of information concerning himself [orherself]."16It should also be noted that ATIP legislation has certain confidentialityprovisions which exclude parts of other acts or the whole of other acts fromthe scope of ATIP legislation. For example, the federal Access to InformationAct in its schedule 2 excludes the entire Statistics Act and the QuebecFreedom of Information Act excludes the acts and registers of civil status.Ontario, on the other hand, includes a confidentiality provision with respect tothe vital statistics but only regarding adoptions. Otherwise, vital statistics fallwithin ATIP's scope in Ontario. British Columbia's ATIP legislation includesall ministries under its act, which includes the vital statistics division. Itremains to be seen precisely how the legislation will be applied with respect tovital statistics in British Columbia. The law at the federal level and in Ontario,Saskatchewan, Newfoundland and Nova Scotia has a provision limiting thestatutory right of privacy to a specified period after which information can be16 Ontario, Commission on Freedom of Information and IndividualPrivacy, Public Government for Private People: Protection of Privacy, TheReport of the Commission on Freedom of Information and Individual Privacy,vol. 3 (Toronto, Ministry of Government Services: printed by J.C. Thatcher,Queen's Printer, 1980), p. 500.32made accessible.17 What this means is that after a prescribed time personalinformation is no longer private and may be released.At the beginning of this chapter it was implied that vital statisticslegislation has certain principles of privacy that lie behind its original creationin 1947 which are out of step with current developments in ATIP legislation.Consequently, the legislation and the attitudes of the gatekeepers of the recordscreated through vital statistics legislation are out of step with currentdevelopments. What, then, is the view of privacy that lies behind the currentvital statistics legislation?In order to address this question adequately we need to turn once againto the past before we can go forward. We need to examine more closely thedelegates' debate about access and privacy in 1947. First, however, we needto take the definitions from the ATIP legislation discussion above and applythem to vital statistics.Clearly vital event records contain personal information under ATIPdefinition of the term. The facts of birth, marriage, death, adoption, anddivorce would all fall under the category of personal information which thelaw assumes it is in the public interest for the objects of records to control.Certain complications arise when applying ATIP's distinction between17 Ont, Access to Information Act, 1990, c. F31, sec. 2(2); Sas, PrivacyAct, 1978 c. P24, sec. 10; Nfld, Privacy Act, 1981, c. 6, sec. 11; NS,Freedom of Information Act, 1990, c. 11, sec. 5(1)(e); Man, Freedom ofInformation Act, 1985-86, c. 6, sec. 41(3)(c).33subjects and third parties to the question of access to vital event records. It iseasy enough to see that any person whose personal information is contained ina vital event record is a subject in ATIP's terms. But difficulties arise becausein many classes of vital event records more than one person is a subject inthese terms. For instance, the birth record of a child who is adopted wouldrecord the names of the birth parents and the facts of adoption. This recordhas not been accessible in every regard to the subjects of the record, i.e., thebirth parents, the adoptive parents, and the child in order to protect certainprivacy concerns of the subjects, each of which may not want some of thefacts to be known to the others, to say nothing of to third parties. The factthat these documents constitute a massive network of interconnected recordsabout the vital events on Canadian soil means that such complications willregularly arise. It would appear, then, that from this perspective at least ATIPlegislation does not easily cover the needs of administering access to vitalevent records.Furthermore, it will be recalled that ATIP also lays down guidelines asto a subject's access to his or her own records and control over third partyaccess. This is the point at which there is the greatest divergence betweenATIP and vital statistics legislation. The philosophical principles underlyingaccess under ATIP legislation demands that access control lies in the hands ofthe subject(s) in a record. In vital statistics legislation access control lieselsewhere, namely with the government body responsible for the creation of34vital event records. It has been the gatekeepers who decide who has access tothe records as well as when and how such access shall be granted.Since that control lies elsewhere, the rules for access and the testsapplied to vital statistics records are different from those of ATIP. Accessrules governing vital statistics legislation are discretionary and the testsapplied are injury tests. At no point does vital statistics legislation describe ordefine what types of injury are at issue. There is no section of vital statisticsacts that prescribes that "the factors of the injury test [be] specific, current,and probable.' This is the second important divergence from ATIP. Weshall have more to say about these points in the following discussion of accessand privacy in the work of the delegates at the 1947 conference on vitalstatistics.The principle of access which the delegates used to form the legislationcan be stated quite simply. Access was to be restricted as tightly as possible toallow persons to have certificates for legal reasons. Of the two major concernsaddressed by ATIP legislation, access and privacy, it is the issue of privacythat most significantly commanded the delegates' attention. Thus, it was theissue of privacy that had to be addressed first and primarily; access was asecondary concern that derived its significance only with respect to theconclusion reached about privacy. The delegates at the 1947 conference neverovertly stated the concept of privacy under which they were working. Their18 Hayward, "Federal Access and Privacy Legislation," p. 50.35view, rather, must be derived from the way in which they describe the needfor restrictive access to vital event records. They believed that vital eventrecords contained private information and therefore that access by persons hadto be rigorously controlled. As one delegate saidI do not think any person should have the blanket right to search therecords. In our own Act it says that any person furnishing satisfactoryevidence that it is not for any unlawful or improper purpose shall beentitled to have a search made of the records. After all, the records ofthese births, marriages and deaths are the personal history of thecitizens of the country; and a person should not be allowed to get allthe information he may require concerning the family affairs of otherpeople. These are personal records, and in that sense, are strictlyguarded with great secrecy; and some measure of that protection shouldbe extended to them as Vital Statistics records. If anybody has theright to search the records, they can get information for all kinds ofpurposes; for commercial purposes, to sell things to people; for debtcollection, and all kinds of what might be considered improperpurposes. 19In the past, apparently, third parties had been able to procure information fromthe records and caused embarrassment, mischief or even harm to others. Thedelegates believed that all persons had a right to not be intruded upon. A wayof describing this right is as a kind of sphere in which each person has a spacethat must not be violated.The first persons to attempt to lay a legal foundation for and therebyclearly enunciate this view of privacy of the individual were Samuel D.19 Verbatim Report, (1948), p. 225. Mr. A. Packford, Alberta DeputyRegistrar—General, Department of Vital Statistics.36Warren and Louis D. Brandeis, in their article "The Right to Privacy,"20which became the foundation—stone for all further discussion on the topic inNorth America.21 Since Warren and Brandeis, of course, there have beenother attempts to define privacy, beginning most importantly with FrederickDavis and William Prosser in 1959 and 1960, respectively.'In their article, Warren and Brandeis argued that due to the changingtechnology of their day, a new understanding of privacy had to be formulated.An example of the new technology that was so disturbing to them wasphotography. At that time cameras became portable instruments that could be20 Warren and Brandeis, "The Right to Privacy," pp. 193-220.21 The specific influence of Warren and Brandeis' article on the practiseof Canadian law is hard to estimate. Certainly when Brandeis died in 1941Canadian jurists praised his work as much as their American counterparts.See: W.P.M.K, "Justice Louis D. Brandeis," University of Toronto LawJournal 4 (1941-1942): 402-403 and I.C. Brand, "Louis D. Brandeis,"Canadian Bar Review 25 (1947): 240-250. Warren and Brandeis' article asalso referred to as "classic" Cecil A. Wright, "The Law of Torts: 1923—1947," Canadian Bar Review 26 (1948): 93, note 228.Because of the influence of their enunciation of the right of privacy orpersonality, Wright's faith "in the ability of the common law to recognise newinterests and cloak them with the dignity of a legal right" was confirmed (p.94).Another example of the influence of the notion of a right to an inviolatepersonality as the right to privacy is the view taken of vital event records bythe delegates at the 1947 conference.22 See David M. O'Brien, Privacy, Law, and Public Policy (New York:Praeger Publishers, 1979), pp. 5-15 and Arthur Schafer, "Privacy: APhilosophical Overview," in Dale Gibson, Aspects of Privacy Law: Essays inHonour of John M. Sharp (Toronto: Butterworth and Co., 1980), pp. 4-14. Astudy of privacy from an archival point of view has been done by HeatherMarie MacNeil in "In search of the Common Good: The Ethics of DisclosingPersonal Information Held in Public Archives" (M.A.S. thesis, University ofBritish Columbia, 1987), 14-59.37used anywhere and at any time and without consent being granted from thesubject. In the past a person had to actually go to a studio and "sit" andthereby give consent for the photograph to be taken. 23 While it is true thatWarren and Brandeis had no obvious precedents for their argument, 24 theyargued that privacy was not so much an existing law, but rather a principalelement in much current law and precedents. They believed that this principlewas in the mind of the creators of such legislation and precedents when theydrafted laws or made judicial decisions. They specifically used examples ofsuch precedents taken from the laws relating to slander, libel, and literary andartistic property.25Using the precedents used by legislators to form these laws, Warrenand Brandeis concluded thatthe right of property in its widest sense, including all possession,including all rights and privileges, and hence embracing the right to aninviolate personality, affords alone that broad basis upon which theprotection which the individual demands can be rested. 26Such a broad basis included ownership over all that is "one's own" and which23242526205.Warren and Brandeis, "The Right To Privacy," p. 211.O'Brien, Privacy, Law, and Public Policy, p. 5.Warren and Brandeis, "The Right To Privacy," p. 204-205, 214.Warren and Brandeis, "The Right To Privacy," p. 211. See also p.38can be identified, either as incorporeal or corporeal, in any way. 27 Thisbroader basis, they held, could be found in the recently articulated but longrecognised28 right to privacy. As they stated:the principle which protects personal writings and any other products ofthe intellect or of the emotions, is the right to privacy, and the law hasno new principle to formulate when it extends this protection to thepersonal appearance, sayings, acts, and to personal relation, domestic orotherwise . . . If casual and unimportant statements in a letter, ifhandiwork, however inartistic and valueless, if possessions of all sortsare protected not only against reproduction, but against description andenumeration, how much more should the acts and sayings of a man inhis social and domestic relations be guarded from ruthless publicity. 29Thus, for Warren and Brandeis, the right to privacy is a matter ofownership in that an individual owns all of those attributes, acts and personalrelations that make him or her a unique individual in the same way that he orshe may own any physical thing. Any person who attempts to make use ofsuch attributes, acts and personal relations without express permission violatesa subject's privacy. This formulation of privacy closely approximates that ofthe delegates at the 1947 conference both because of internal evidence of theirconference proceedings and because the Warren—Brandeis view was, while notunquestioned, very influential and had no serious competitors, or further27 Warren and Brandeis, "The Right To Privacy," p. 206, in footnote.28 See the way they use then—existing laws to devise rules for futureprivacy legislation. Warren and Brandeis, "The Right To Privacy," pp. 214—219.29 Warren and Brandeis, "The Right To Privacy," p. 213, 214. Myemphasis.39insight added to it, until the 1960s. Certainly by the 1940s, however, theWarren—Brandeis thinking about privacy as a sphere around an individualmade up of their attributes, best defined as an "inviolate personality," wasknown quite widely, including in Canada.By applying this principle of privacy to vital event records, thedelegates had to develop various layers of access to the records. For example,access to birth records had to be restricted because a particular birth may havebeen illegitimate or an adoption may have taken place following the birth andthe child and the natural parents had to be protected from what the delegatesconsidered as prying eyes, that is anyone who did not have a legitimate interestin the information. One delegate said:We have not only to safeguard the identity of an adopted child . . . [oran] illegitimate child . . . but there are also the . . . women who willhave to leave the father's side of the registration blank, and theimplication is there that it is an illegitimate child, no matter howtechnical we try to be about it. So from the very beginning I think wewould like to see persons safeguarded.3°Thus, any prescribed information contained in birth records to which legitimateaccess could be granted was to be restricted to updated versions of thoserecords. Thus, for an adoption the adopting parents names would appear in thespace in the birth registration reserved for birth parents. Such informationdoes not include information contained in the original registrations (certified3° Verbatim Report, (1948), p. 226. Miss K.M. Jackson, secretary of theFamily Welfare Division of the Canadian Welfare Council.40copies or long—form certificates).Information about marriages was similarly restricted because no one,not even the bride's or bridegroom's parents or the children themselves, in theview of the delegates, should be allowed to discover if an illegitimate childwas born before the couple were married. One delegate stated the case in thisway "I do not agree with the principle of the parents of one of the parties, or achild of the marriage getting it [the certificate], because the child might wishto find out if he was born before his parents were married."31Death registrations were also restricted but only to the extent that thecause of death was not to be revealed under any circumstances32 because, as aQuebec delegate put it "You cannot imagine how far this protects the familyitself Perhaps for psychological reasons it is better in some cases that thecause is not known to the family."33One of the delegates, A. Packford, the Alberta deputy registrar general,stated what is at least part of the operative distinction that guided the delegatesin how they thought about access restrictions concerning these records. Hesaid "If a parent is inquiring about a child who may have gone off and gotmarried, that is a very legitimate reason; but if they want to know something3' Verbatim Report, (1948), p. 248. Mr. D.M. Treadgold, Ontario SeniorSolicitor, Attorney—General's Department.32 Verbatim Report, (1948), pp. 251-252.33 Verbatim Report, (1948), p. 251. Dr. P. Parrot, Demographer,Ministry of Health, Quebec, also chairman of conference.41about their neighbours, that is not legitimate."34 Thus, one of themost important reasons for the restrictions hinged upon this distinction betweensubjects and third parties. Third persons were persons whose personalinformation was not in a specific vital event record. Subjects were thereforeall those whose personal information did appear in a specific vital eventrecord. Other delegates talked in a similar vein in discussing third parties whowant information about other persons. Warren and Brandeis were motivated inwriting their article precisely because of such third party intervention.35 Intheir article, they describe their view of such intervention in terms similar tothose used by the delegates at the conference.Gossip is no longer the resource of the idle and of the vicious, but hasbecome a trade, which is pursued with industry as well as effrontery.To satisfy a prurient taste the details of sexual relations are spreadbroadcast in the columns of the daily papers. To occupy the indolent,column on column is filled with idle gossip, which can only beprocured by intrusion upon the domestic circle . . . Each crop ofunseemly gossip, thus harvested, becomes the seed of more, and, indirect proportion to its circulation, results in a lowering of socialstandards and of morality. Even gossip, apparently harmless, whenwidely and persistently circulated, is potent for evi1.36One delegate at the conference described such persons as "busybodies" andanother said that they "go out and talk." Still another commented on the34 Verbatim Report, (1948), p. 229.35 The motivation stemmed directly from overt, and obviously unwanted,press coverage of the marriage of Warren's daughter. See: Public Governmentfor Private People. Vol 3., p. 496.36 Warren and Brandeis, "The Right To Privacy," p. 196.42possibility of unscrupulous persons using the information to sell products topeople or for debt collection or for "all kinds of what might be consideredimproper purposes."37While neither the delegates nor the legislation provides preciseguidelines to assist gatekeepers in administering access, it is clear that thedelegates to the conference had a general idea of the need to protect thesubjects of records from disclosure of information about them in circumstancesthat conceivably might harm them. They simply evolved their ownadministrative rules to cover the situation. This way of operating is congenialfrom a number of points of view. As two observers of these kinds of rules putit: "Such rules inexpensively and swiftly routinise the exercise of discretion;they provide easy justifications for the use of statutory powers; they 'get thejob done' whilst offering something to critics...they give a flexibility thatprimary legislation does not offer; and they are largely immune from judicialreview."38The access regime in vital statistics legislation in 1947-1949 covers37 Verbatim Report, (1948), p. 228. J.T. Marshall, acting director of theVital Statistics Division of the Dominion Bureau of Statistics, Mr. Treadgoldon p. 253 and Mr. Packford on p. 225.38 Robert Baldwin and John Houghton, "Circular Arguments: The Statusand Legitimacy of Administrative Rules," Public Law (Summer 1986): 239—240.43searches and issuance of certificates and certified copies." Generally accessis granted in two steps. First, a person can request a search for a particularrecord. Access at this level is entirely discretionary; that is, it is in the handsof the registrar—general. Once a person has filled out the prescribed form andpaid the prescribed fee the person may have a search made for the existence ofa particular record. The registrar—general then makes a report giving no otherinformation than that the record exists, and perhaps (depending upon thejurisdiction) the registration number. Following this procedure, persons mayapply for a specific record and receive a certificate.It is clear that gatekeepers evolved different rules for core records andfor secondary records. Core records of births, marriages, and deaths had to beprotected from falling into the hands of those who did not have a legitimatereason to receive these records. Thus, third party access was to be carefullywatched over by means of the discretion of the gatekeepers and the use of astandard certificate bearing only certain specified information given out tolegitimate inquirers.By contrast, secondary records, or amendments to the original or coreregistrations, could not be accessed by anyone. For example, no person could39 Most jurisdictions provide for access under these two headings. See forexample; Sas, Vital Statistics Act, 1978, c. V7, secs. 39, 40; NWT, Vital Statistics Act, 1974, c. V4. Nfld and Ont are somewhat different in their formof stating the requirements of access but the requirements themselves areessentially the same. Nfld, Vital Statistics Act, 1990, c. V-6, sec. 26. Ont,Vital Statistics Act, c. V4, secs. 43-45, 48.44get access to any original records that reveal facts such as illegitimacy,adoption, the names of birth parents, the original names of adopted children, orthe cause of death. Not even subjects whose personal information was in therecords could get access to these records. They were permanently buried andhidden from view in the vital event records. Any core records that containedany of these sorts of amendments or secondary records would only be releasedunder certain circumstances, namely by order of the supreme court, aprovincial court or an attorney—general's office.What then was the notion of privacy upon which the delegates at the1947 conference were making decisions on access? Since the delegates neverdirectly stated their presuppositions, we shall have to try to infer theirunderstanding of privacy from their statements. If they had spoken moreprecisely their notion of privacy might be something like the following.Privacy is a set of borders that distinguishes one person's informational"space," or inviolate personality, from that of another person.While this description of their notion of privacy might be accurate, it iseven more important to point out that the delegates at the conference werehighly practical men and women. Their central concern was how to dealeffectively with the practical problems of regulating access to the records andinformation in their care. Their notion of privacy is therefore best derivedfrom those practical circumstances. Their conception of privacy did notinclude the notion of a subject of a record having any influence over access to45his or her records by a third party. A mechanism was needed to uphold theprivacy rights of subjects. The mechanism that they chose was that of anunsigned, unspoken and unrecognised, as such, contract between persons livingin Canada established and regulated unilaterally by the state wherebyprescribed vital event information is supplied to prescribed persons underprescribed circumstances or conditions. They practised a kind of ad hoc injurytest with which they could regulate access to the records at their owndiscretion.For perhaps the first time in Canadian legislative history, a group ofcivil servants at a specific time and place and as a single body determined thatthe records for which they were responsible had to be thought about in termsof privacy. That is, the records produced by government must be protectedfrom misuse by persons who were not subjects, that is, those named in therecords. The state had to protect subjects from third parties, those not namedin the records, by protecting the records.The view of privacy that the gatekeepers used and which coloured vitalstatistics legislation has enabled them to avoid all the legal suits and argumentsthat have occurred in the United States and in Great Britain in recent years 40It is another question, however, to ask about the need for the stringentapplication of their principle of privacy to the extent that it completelyovershadows access.40 More shall be said about these cases at the end of chapter three.46For example, there is simply no indication in Canadian law journals andcourt case lists that any person has used vital event records in a malicious wayand thereby violated or harmed any persons who had been involved with anyvital event. As well, there is no indication that any vital statistics delegates atany of their meetings either prior to or after 1947 knew of the existence ofsuch articles, journals, or cases. In other words, there are no documentedcases where such interference in the lives of persons had actually occurred.'The gatekeepers' ideas were based solely upon practical observationand upon the assumption, since the absence of evidence leaves nothing butassumption, that open public access would be detrimental to the privacy of allpersons. The ATIP regime has forced42 vital event records gatekeepers in41 The author has checked The Canadian Abridgement, both the Case LawDigests and the Canadian Legal Literature, and was unable to find a singlecase prior to 1947. There was only one case after that time concerningdisclosure of records and that case simply confirmed the intent of the vitalstatistics act. [cited 37 Can. Abr. (2nd)] Love Estate, Re (1968), 64 W.W.R.190 (Alta. T.D.).42 This word in used here to imply that without such pressure very littleprogress would be made towards archival access if the gatekeepers were left totheir own discretion because legislative rules allow too much freedom fromprimary legislation and they are therefore open to exploitation. Baldwin andHoughton, "Circular Arguments," p. 240. One of the results of such overuse ofrules for discretion has been the unwillingness of gatekeepers to relinquishtotal control over "their records", an attitude that has existed in the civilservice for some time. See Canada, Task Force on Government Information.To Know and Be Known: The Report of the Task Force on GovernmentInformation, vol. 1 (Ottawa: Task Force on Government Information, 1969),p. 13. A second hidden, and even more important, argument against archivalaccess from a gatekeeper's administrative perspective is the fact that vital47some jurisdictions43 and will force others in different jurisdictions to re—thinkthe legislation that governs the collection and use of such personal information.For example, British Columbia's gatekeepers will soon be forced to deal withthe demand of ATIP legislation in that province, which covers all ministries.At present records schedules covering vital event records have been drawn upand approved, although nothing has yet been done about implementing theirprovisions.Certainly definitions will be needed such as defining clearly "personalinformation" under the terms of ATIP, as well as defining "persons" moreclearly. There is no difference between the "personal information "that ATIPis concerned about and the personal information that is contained in vital eventrecords. Thus, there is no difference between the personal information that isin vital event records and other government records.More substantive than definitions is the way in which the two regimesunderstand and address the issues of access and privacy. It is clear that thereis a substantive difference in the approach of ATIP and the approach of vitalevent legislation to these two issues. ATIP's approach is, or at least attemptsevent records generate considerable revenue. This point cannot be provenshort of having access to gatekeeper's administrative records and reports. Thepoint is made here simply to recognise that this administrative value does existfor the gatekeepers.43 Ontario has since 1990 moved to allow complete transferral of vitalevent records to the provincial repository, as is evidenced by the inclusion ofthe legal right to do so in its vital statistics act itself. Ont, Vital Statistics Act.c. V4 sec. 5(3).48to be, balanced in the sense that legislators attempt to examine the two issuesmore or less at the same time and try to balance the one right with and againstthe other. Vital event legislation on the other hand approached the two issuesfrom a linear perspective. That is, the first and primary issue to have beendealt with was the right of privacy. The second right, of access, is dealt withonly secondarily and as a result of dealing with the first issue.As a consequence there is an over—emphasis on the right of privacy invital event legislation and the access right is down—played. There have beenattempts by the gatekeepers of these records to deal with ATIP legislation butthese attempts have been haphazard and they have not taken into account thefull impact of the demand for access and accessibility to records by researchersin the context of ATIP legislation. It is the concern of the third chapter toexamine that need for researcher access and accessibility to vital event recordsin the context of an archives repository.49CHAPTER THREEACCESS AND ACCESSIBILITY TO VITAL EVENT RECORDSHaving examined the history of vital statistics legislation and pointedout its underlying emphasis on privacy, as opposed to access, through acomparison with the present ATIP legislative regime, the discussion can beginconsidering access and accessibility of these records in an archives repository.The two important terms of "access" and "accessibility" can now be defined.Access can be defined as the "Right, opportunity, or means of finding,using, or approaching documents and/or information." Accessibility isdefined as "The availability of archival materials for consultation.Accessibility can be determined by such factors as legal authorization,proximity of materials to researchers, usable formats, and the existence offinding aids."2 The question to be answered in this chapter, then, is: whatmight access and accessibility to vital event records look like? We shall offeran answer to this question by examining questions such as when and howtransfers of these records from the gatekeepers might be made and withquestions around why such access is necessary.1 Lewis J. Bellardo and Lynn Lady Bellardo, compilers, A Glossary forArchivists, Manuscript Curators, and Records Managers, s.v. "Access,"(Chicago: The Society of American Archivists, 1992).2 Bellardo and Bellardo, A Glossary for Archivists, Manuscript Curators,and Records Managers, s.v. "Accessibility."50Vital event records are a class of public records. Public records maybe defined as "all documents made or received and preserved in the legitimateconduct of governance by the sovereign or its agents."3 The "sovereign" inany given state is understood to be all those parts that make up the structure ofa governing system. In a democratic society such as Canada the people areultimately sovereign. They express their sovereignty through the system ofgovernance; that is, through the executive, legislative and judicial organs ofthe state.As well, citizens are subjects of the civil power they themselvesestablish. In the case of vital event records the civil power requiresregistration of vital events of all subjects in order to conduct governance: toestablish the rights and obligations of persons. The civil power provides theforms for the registrations and requires that each vital event be recorded.These records are therefore public records as to their provenance. Since thelate 1940s they have not been public records in the sense of being open forinspection. With the creation of the ATIP regime, all public records, in thefirst sense, have been increasingly seen to be records that must at some pointbe made open to inspection.These records are not, therefore, the property of the transitory3 Trevor Livelton, "Public Records: A Study in Archival Theory," (Masterof Archival Studies Thesis, University of British Columbia, 1991), 139. Hisemphasis. See Livelton's further discussion following this definition for hisanalysis of practical situations while using this definition as a yardstick.51individuals in the bureaucracy, the gatekeepers. Nor are they in any senseowned by the civil power of the day. Rather, they are "owned by the peoplein the same sense that the citizens own their own courthouse or town hall,sidewalks and streets, funds in the treasury. They are held in trust for thecitizens by custodians—usually the heads of agencies in which the recordshave been accumulated."4The ATIP regime demands that vital event records as public records inthe above two senses of being open to the public and available for use be madeto mesh together more closely in reality. That is, citizens have a right ofaccess to vital event records because they were created by the civil powerwhich the citizens constitute and then once access has been achieved, establisha regime whereby the records can be used or made accessible. Interestingly,some of the delegates at the vital statistics conference in 1947 recognised thatvital event records were in fact public records,5 that is, records that should beopen for inspection.Almost forty years later, members of vital statistics committees weresaying precisely the same thing, that vital event records must be considered as4 H.G. Jones, Local Government Records: An Introduction to theirManagement. Preservation and Use (Nashville Tennessee: AmericanAssociation for State and Local History, 1980), p. 23.5 Verbatim Report, (1948), p. 227. Mr. D.M. Treadgold, Ontario SeniorSolicitor, Attorney—General's Department.52records to which public access must be given.6 Certainly since 1980, vitalstatistics representatives from across the country have become increasinglyconcerned about ATIP and its effect on vital event records and have discussedthe issue of access at annual meetings of the Vital Statistics Council forCanada.' How can the issue of archival access to vital event records be dealtwith? That is, how can the rights of privacy and of public access be mediated?One approach is to have archivists act as the intermediaries between thetwo rights of privacy and access, between subjects and third parties andbetween the records and the researcher, in effect act as gatekeepers. As onegatekeeper wrote in response to the BCARS survey' "[Once transfers havebeen formalized by agreement] I would expect that these records would beaccessed only by archives staff." Therefore, according to this person,archivists would administer third party access assuming that there is acontinuing need for confidentiality. This approach is clearly unacceptable6 British Columbia Commissioners, "Amendments to the Uniform VitalStatistics Act: Report," Appendix 0, in Uniform Law Conference of Canada,Proceedings of the Sixty—Fifth Annual Meeting (Quebec, Quebec: UniformLaw Conference, August 1983), 290.7 See: Vital Statistics Council For Canada. Minutes of the 37th AnnualMeeting. Ottawa, Ontario, May 28-30, 1980: p. 3 of W.D. Burrowes Report,Appendix H; 39th Annual Meeting. June 1-3, 1982, Lord Beaverbrook Hotel,Fredericton, New Brunswick, pp. 8,9; 40th Annual Meeting. June 7-9, 1983.R.H. Coats Building, Tunney's Pasture, Ottawa, Ontario, p. 17.This survey was originally sent out by the BCARS to every gatekeeperin each jurisdiction in the spring and summer of 1991. It was sent out asecond time by the author in January 1993 to update the forms. Very littlehad changed between the two mailings. A copy of the questionnaire and acollated list of the answers can be found in Appendix C.53because it demands that the repository staff act in the stead of the gatekeepersin applying the same or similar discretionary rules for access.Another version of this approach is to devise and apply a number ofstandards or guidelines that would regulate access and privacy interests to therecords once they are being transferred on a regular basis to the repository. Anumber of persons have developed such standards.9 One proponent of thisview, H. MacNeil, argues that archivists "are uniquely qualified to play therole of 'honest broker' between today's citizens and tomorrow'sresearchers. "° The archivist, she says, has "a particular obligation to alertthose whose occupations involve systematic breaches of others' privacy.. .to thefact that, although some invasions of privacy are inevitable, a cavalier attitudetoward such losses, may corrupt the invader as well as harm the victim.""In other words archivists must act as gatekeepers to the records in his/her care.9 Robbin suggests a number: Responsibility for maintaining balancebetween researcher's needs and the demands of privacy. Competence:recognises his/her own and when that is lacking seek out the competence ofothers in the decision—making process. Moral and legal standards: adheres tolegal and administrative standards. Confidentiality and restrictions:nondisclosure and protection of confidentiality and establishes data securitymeasures. Alice Robbin, "Ethical Standards and Data Archives," NewDirections for Program Evaluation 4 (1978): 14-17.10 Judith S. Rowe, "Privacy Legislation: Implications for Archives,"Archivists and Machine—Readable Records: Proceedings of the Conference onArchival Management of Machine—Readable Records, February 7-10, 1979, Ann Arbor, Michigan; ed. Carolyn L. Geda, et al. Chicago: Society ofAmerican Archivists, 1980, p. 194. Cited by MacNeil, "In Search of theCommon Good," p. 117.11 MacNeil, "In Search of the Common Good," p. 49.54She agrees with H. Jenkinson that the moral defencen of archivesrequires the archivist to be loyal first to the records under his/her care in termsof protecting the integrity of the records. However, she seeks to step beyondJenkinson's formulation of the moral defence and add another element. Shesuggests that archivists must be concerned about the release of any recordscontaining personal information, or, rather, about the effect of prematuredisclosure of information affecting an individual's privacy." Rules areneeded to guide the release of records containing personal information. Shesuggests that archivists need to be involved,in the establishment of policies governing the collection, maintenanceand dissemination of personal information held in government agencies.We need to know how personal information is collected and for whatpurpose; and we need to increase our understanding of theenvironment in which such records are created."She goes on to argue that four sets of questions15 need to be askedabout the records in order to establish appropriate access policies:First, what details are available about the existence of recordscontaining personal information: what kind of information12 Hilary Jenkinson, A Manual of Archival Administration  (London: PercyLund and co., ltd., first published 1922, 1937), pp. 83 ff.13 MacNeil, "In Search of the Common Good," pp. 137, 138.14 MacNeil, "In Search of the Common Good," pp. 145, 146. Myemphasis." MacNeil, "In Search of the Common Good," p. 146.55should be collected about the existence of records and bywhom? To whom should such information be made available,for example, to government agencies, the public, and for whatpurpose? Secondly, which records are to be kept and for howlong? Who will decide and how are decisions to bedocumented, made known and accounted for? Thirdly, when, ifever, can an embargo on access other than by the provider ofthe information and by the original agency be lifted and for whatpurpose? If it is lifted, should it be lifted in favour of otheragencies or parties for management purposes? In favour of thegeneral public? Finally, where are the records to be kept? Inwhat circumstances are they to be held by a custodialorganization? What safeguards exist for protecting personalinformation? How are they assessed and by whom? 16These are entirely appropriate questions to ask of the records but it isimportant to determine not just what questions need to be asked but also whenthey need to be asked.The first set of questions concerns the compilation and dissemination ofinformation about records containing personal information. In Canadian ATIPregimes, all government agencies, including the creating agency, custodialagencies, and repositories, are responsible for compiling this information andmaking it available to citizens so that they can exercise their rights underaccess and privacy laws. In other words, it is the agency having custody ofthe records that is responsible for these tasks. Assuming that access andprivacy legislation applies to vital event records no matter what agency hascustody of the records, whether the creating agency, a custodial agency or arepository, in principle their administration under access and privacy laws16 MacNeil, "In Search of the Common Good," p. 146.56should not be affected.The second set of questions asked by MacNeil relate to the issue ofdisposition. There is no question either by the gatekeepers or by archivists andrecords analysts over the importance of vital event records. All of the core,secondary and tertiary records must be kept permanently for their probativeand archival or historical values. It would be preferable that only microfilm,or some other machine—readable, copies be kept permanently but at presentonly archivists argue against retaining originals plus copies of these records,especially in paper format.When vital event records may be transferred to a repository is the issueaddressed by the third set of questions. If restrictions on access while theserecords remain in the creating agency expire at some future point" that pointmarks the moment at which, or at least after which, transfer may appropriatelytake place. If concerns to protect privacy no longer exist, the repository canconcentrate on making the records accessible by facilitating reference throughproduction of finding aids and so on. The separate question of whether at17 The gatekeepers have established a vague limit themselves by takingaccount of a new inquirer after vital event records. Genealogists have becomeso significant that new fee structures and new forms have had to be created todeal with them. See Appendices C and E. A further accessibility question isthat of fee versus free. That is, if some vital event records have reached suchan age that genealogists can have access to the records, then those recordshave reached their optimum level of administrative use. Therefore they couldbe transferred to a repository where citizens could access them withoutpayment and without the added workload on the gatekeepers. Ellen Detlefsen,"User Costs: Information as a Social Good Vs. Information as a Commodity,"Government Publications Review 11(1984): 387.57some point government agencies may use the personal information in theserecords for purposes formerly restricted is not relevant to the presentdiscussion, but it might be noted that neither the legislation nor administrativerules affecting vital event records currently state precisely the rules underwhich vital event records are used internally in government. The vagueundertakings in the legislation and the discretion of gatekeepers are the onlyguarantees persons have that their privacy will be protected in government'suse of the information in vital event records.The final set of questions merely looks at the same issue as the first. Inan ATIP regime, where the records are or who has custody of them isimmaterial. The law applies in all cases. However, it is precisely the sensethat this is becoming the case that makes the gatekeepers of these records arebecoming concerned. They can see that they can no longer use argumentsspecific to vital event records to maintain their discretionary regime, nor canthey claim that reasons of access demand their own continuing custody of theserecords. As a result, the opportunities for determining transfer to archivalrepositories is becoming more timely than it has ever been.There remains the question of what archivists' role should be in settingthe rules for access. In ATIP, some of the rules are established in law andsome in regulations and procedures to administer the law. Clearly, archivistsmay offer advice in the former realm and may have to develop rules in theirown sphere where the latter is concerned. In any event, under ATIP, it can no58longer be argued that all records in repositories have to be completely open.When records are no longer needed for administrative purposes, theirdisposition may result in transfer to a repository before restrictions on accesshave expired. The access rules in place will still apply. It is a matter ofadministering them until they expire. Of course, in administering the rulesthere is often no escape from exercising discretionary judgement on the basisof rules, not on the basis of individual archivist's inclinations or judgement ofthe purposes of the petitioner for access, or any consideration of any otherfactors not determined by the law. In this sense, archivists unavoidablybecome gatekeepers in some circumstances.It is, however, very unlikely that vital event records will be transferredto archival repositories while restrictions on access still apply, becauseadministrative use of the records will probably last as long as the need forrestrictions. In fact, it is arguable that if these records are considered toosensitive for a researcher to see them in a repository before their time—limitshave expired, then it may well be that these records are too sensitive to be heldin a repository in the first place.18 When there is no longer any need toadminister matters in relation to the persons who are the subjects of vital eventrecords, it will probably be found that privacy concerns begin to expire. Thedifficult question is to determine when that expiration occurs.18 Helen Yoxall, "Privacy and Personal Papers," Archives andManuscripts: The Journal of the Australian Society of Archivists 12, no. 1(May 1984): 42.59One approach is to set a standard term after which all vital eventrecords are open. This method has been used in Canada and the United States,to name two instances, for census records. The federal privacy law sets a limitof eighty years after the death of the person for operation of restrictions onaccess to personal information. A report written in 1983 for adminstration ofvital event records suggested that "after a period, all records should be freelyphotocopied for release, because beyond this period secrecy achieves nothing.A suggested period is 100 years."19This statement is interesting from two points of view. First, it assumesthat copies of the original records will have to be made in order to facilitatepublic accessibility, just as are now made to facilitate administrative use.However, it is ridiculous from a cost and preservation point of view tophotocopy individual records on demand for public inspection in archivalrepositories. Moreover, it is not helpful to confuse these issues of accessibilitywith the question of access, or right to consult the records and use theinformation they bear. Second, it is not clear what the report means by onehundred years. Is it from the creation of the record, the death of theindividual, or what? And is one hundred years reasonable for all classes ofvital event records? It may be proposed that it is not.^If the goal is to19 British Columbia and Canadian Commissioners. "Vital StatisticsReport." Appendix 0, in Uniform Law Conference of Canada. Proceedings ofthe Sixty—Fifth Annual Meeting. Quebec, Quebec: Uniform Law Conference,1983: 290. They did not make a clear statement as to from what point that100 years would be numbered.60determine when privacy concerns expire, we are in effect seeking a regime inwhich each class of vital event records can be made accessible in archivalrepositories without restriction and without the exercise of discretion on thepart of archival custodians of the records. In effect, we want to transform aninjury test, discretionary regime into a class test mandatory regime such that,eventually, all records of every class of vital event will be open.To open each class means demonstrating that the possibility of injurywhich restricts access will expire at some determinable point in time. So,determining when records can be opened to disclosure means demonstratingthat harm can no longer occur to any interest formerly protected. Thisinevitably involves looking at the information contained in the record andwhether its release can do harm to the subjects of the records.The issue of time—limits has been addressed in some jurisdictions asearly as 1981 and 1983.20 More recently, a survey performed by theBCARS21 in 1990 provides a relatively accurate account of what hashappened so far. Of those jurisdictions who answered the survey, five (PrinceEdward Island, Newfoundland, Yukon, Saskatchewan, and Nova Scotia) didnot transfer original registrations of any kind to a government repository.20 See Vital Statistics Council for Canada. Minutes of the 38th AnnualMeeting. Toronto, Ontario, May 26-29, 1981, p. 25; and Vital StatisticsCouncil for Canada. Minutes of the 40th Annual Meeting.  R.H. CoatsBuilding, Tunney's Pasture, Ottawa, Ontario, 1983, p. 17.21 The collated results of the survey, with the questions asked, can befound in Appendix C.61Manitoba and New Brunswick have not given up their legal possession ofcopies to their respective repositories and therefore retain control over access.British Columbia, despite having gained legislative approval for ongoingrecords schedules as of 29 June 1992 must also be placed in this categorybecause the gatekeeper in that jurisdiction has not given up legal control overaccess. Only two jurisdictions (Ontario and Quebec) indicated that they havean ongoing system of transferral for access of the records themselves, and notmerely indices as is the case with Alberta, to their repositories under protocolagreements or legislation.A possible source for help in determining appropriate time—limits forrelease of vital event records are their gatekeepers. However, this source isnot as helpful as one might hope. Each agency in the different jurisdictionshas a different time—limit for the same records and it is not clear from whatevent these time—limits are to be calculated, whether from the actual vitalevent date or the death of the subject(s) involved.For example, Alberta has a time—limit of one—hundred years on birthregistrations, seventy—five years on marriage registrations and fifty years ondeath registrations. Ontario has a time—limit for birth records of ninety—fiveyears, for marriage and divorce records of eighty years, and for death recordsof seventy years. Quebec has a time—limit of one—hundred years for allrecords while New Brunswick also has a time—limit of one—hundred years butonly for indices. The recommended limit for all records by the most recently62revised model vital statistics act is also one—hundred years.' BritishColumbia, in its ongoing vital statistics records schedules, has a time—limit oftwenty years across the board but access is determined solely by the director.Manitoba also allows access solely at the discretion of the director.Other jurisdictions (Nova Scotia, Saskatchewan, Yukon, Prince EdwardIsland, and Newfoundland) do not transfer records and therefore do not haveaccess policies.23 What makes matters more difficult in using the gatekeepersas a source for determining time—limits is the fact there seems to be noparticular reason for the limits assigned by them to particular classes ofrecords.In order to marshall some reasoned arguments about appropriate time—limits, it will be useful to look at actual cases of contention over access to vitalevent records. It should be noted that there exist very few cases that can bedirectly applied to the problem of establishing time—limits to vital eventrecords. In fact, in Canada, as has been pointed out, there are no such cases.Therefore, such cases as do exist shall be used wherever possible and wherenone exist for a particular set of vital event records, a scenario will beproposed that will be an aid to the discussion. Whether real cases are usedfrom outside Canada or a scenario is created for discussion does not reduce the22 Uniform Law Commission of Canada, "Model Vital Statistics Act,"Sixty—eighth Annual Meeting, Appendix N, 1986, sec. 31(12).23 See Appendix C.63significance of the argument. All that we want from a discussion of case—histories is information about how untimely release of records will affectsubjects.The establishment of such time—limits must be based upon anexamination of such cases in the context of an invasion—of—privacy test.24This test is designed to apply four interrelated issues, by means of questions, toeach set of records: expectations of the individual, sensitivity of theinformation, probability of injury and the context of the file. We shall discussthe four elements separately and then apply whatever parts we think isnecessary to vital event records such as those for births, marriages and deaths.The secondary and tertiary records related to the core records need not bedealt with here because they will likely simply be released at the same time asthe core records with which they are connected.The first of the four parts of the test to be discussed is the context ofthe file. Context of the file simply refers to personal information in theregistration form and its relationship to the file as a whole. That file includesboth a particular registration form's relationship with other registrations in itsseries as well as to other series, secondary and tertiary. Since registrations arefiled and microfilmed one after another, they cannot be released for publicscrutiny until after the expiration of a time—limit from the date of the event.24 This test was developed by the National Archives of Canada. Relevantsections of the Test have been copied and included in Appendix D.64Upon that expiration they will become available. At this time any secondaryor tertiary information that is related to the registrations can also be released.The file context will not allow the release of individual records. Therefore,the entire file will have to be made accessible at the same time, so there is noproblem with the context of a particular registration.The second part of the test to be applied to vital event records is that ofthe expectations of the individual when vital event information was placed intothe hands of government. The civil power in legislation and regulationssimply states what undertaking it will provide to ensure the protection ofprivacy interests on behalf of citizens, regardless of whether the citizen knowseither the relevant legislation or regulations. There is only one statement ofthe undertaking by the civil power regarding privacy, access and accessibilityin either the blank registration forms 25 or in the vital statistics legislation andregulations.That one instance simply states that: "No person employed in theadministration of this Act shall (a) communicate or allow to be communicatedto any person not entitled to it any information obtained under this Act, or (b)allow any person not entitled to, to inspect or have access to any records25 See for example any search application forms from any of thejurisdictions. See also regulations concerning the VSA of Alta, Reg. 304/85;Man, Reg. 308/88, and Ont, Reg. 942/80.65containing information under this Act."26 The expectations of the individualtherefore with regard to this guarantee is simply that the state will not allowpersonal information to be widely disseminated.The final two parts of the test are sensitivity of the information andprobability of injury. These two parts of the test are more applicable to vitalevent records. They shall be discussed as a single question because sensitivityof information is directly related to possibility of injury. This test can belegitimately applied to vital event records when it is tied to time—limits Thetest must be used to somehow determine injury and sensitivity. These in turncan be determined by the use of cases. If the information contained in therecords is considered sensitive "can it be surmised that the particulardisclosure carries with it the probability of causing measurable injury? Injuryis to be interpreted as any harm or embarrassment which will have directnegative effects on an individual's career, reputation, financial position, healthor well—being."27This statement from the invasion—of—privacy test reveals an importantperspective: the privacy interest in personal information dies with a decedent.As the Supreme Court of the United States expressed it: "the right of privacy26 Uniform Law Commission, Model Vital Statistics Act, Appendix N,sec 37(1). Winnipeg, Manitoba.27 See Appendix D.66must be asserted by the person holding that right... ?,28 Twenty years areallowed before the lapse of privacy to take action on legal post—mortemeffects. Those who have created ATIP legislation in Canada hold the sameview. For example the federal definition of personal information excludesinformation about someone who has been dead for more than twenty years.29Of other jurisdictions that have ATIP legislation (those that do not are Alberta,Northwest Territories, Prince Edward Island and New Brunswick), four haveexplicit references to a time—limit applied to the records of decedents.Manitoba limits the time to ten years3° and Saskatchewan places the time—limit at twenty—five years 31 British Columbia places the limit at twentyyears for all records32 but its vital statistics records schedules provide thatthat limit be administered by the BCARS (with the consent of the director).Ontario places the limit at thirty years.33Jurisdictions that have ATIP legislation but no explicit reference to this28 Emily E. Garrard, "Administrative Law: Death Certificates are notexempt from Disclosure Requirements of the Freedom of Information Act,"South Carolina Law Review 37, no. 1 (Autumn 1985): 2.29 Canada, Privacy Act, 1980-81-82-83, c. P21, sec 3.3° Man, Freedom of Information Act, 1985-86, c. 6, sec. 41(3).31 Sas, Freedom of Information and Protection of Privacy Act, 1990-91,c. F22.01, sec. 30(1).32 BC, Freedom of Information and Protection of Privacy Act, Bill 50,1992, sec. 36(c).33 Ont, Freedom of Information and Protection of Privacy Act, 1990, c.F31, Sec 2(2).67principle of personal information not applying to a decedent after a certaintime are Quebec, Yukon, Nova Scotia and Newfoundland. Of these four onlythe latter has a reference in its separate (from access legislation) privacy actwhich implies the same principle: "A right of action for violation of privacy isextinguished by the death of the individual whose privacy is alleged to havebeen violated. "34 Ontario's ATIP legislation explicitly states35 that it doesnot apply to the vital event records transferred to the provincial archives.Of all vital event records, death registrations are the least sensitivebecause they contain only one item of personal information that can beconsidered sensitive, and certainly not by the decedent. That one item is howthe individual died. This one item may affect the decedent's survivors. It ispossible that someone's death, from AIDS, for example, if discoveredsometime after the event may harm the family or loved ones of the person whodied because of some individual gaining access to such information. Eventhough this probability of injury is low, it is suggested by this thesis that alower time—limit be applied to death registrations. Such a time—limit is ten totwenty years from the event.It might be suggested that all proposed time—limits be measured fromthe date of the death of a subject of a record. This would be a simpler34 Nfld, Privacy Act, 1990, c. P22, sec. 11.35 Ont, Freedom of Information and Protection of Privacy Act, 1990, c.F31, sec. 65.68approach if only one subject were always involved but since there are oftenmultiple subjects in vital event records, it will not work. For example, if achild dies, a person might gain access to its birth registration after twentyyears. The privacy of the parents, especially if the child were adopted orillegitimate, might be violated. This is an unacceptable risk of invasion ofprivacy for these other subjects.Once access is established for death registrations after a period ofbetween ten to twenty years, a researcher can find a number of items ofpersonal information which would lead to other registrations, such as birthregistrations. As it turns out, birth registrations are by far the registrationsthat are most affected by the issue of sensitivity/ possible harm. Two casesthat show this involve transsexualism and adoptions.A number of cases have arisen in recent years over transsexualismwhere an individual born either male or female chooses to obtain the biologicaland social attributes that they felt more closely matched their psychologicalattributes and therefore switched from male to female or from female to male.A major concern by such persons was that their original birth registrations, andtherefore all future certificates, be made to declare their new status. Twocases in Britain, in 1982 and in 1990 were considered by the European Courtof Human Rights.36 The complaint of the person in each case was that the36 John Andrews and Ann Sherlock, "Transsexual rights in the UnitedKingdom," European Law Review 16, no. 3 (1991): 262-266. See alsoCommonwealth Secretariat, "Right to respect for private life—sex change-69law of the United Kingdom in choosing to not alter original birth registrationsinterfered with the private activities of these two individuals.The problem for transsexuals is not just that birth certificates need to beproduced at different times (i.e. insurance companies, universities, governmentemployment) but also that birth records in Britain are public records (in thesense of open to the public) and as such can feasibly cause serious problemsfor the individuals involved.37 Not only can it cause unwarrantedembarrassment when it is necessary to produce a birth certificate, it can alsocause the loss of opportunity in seeking work positions, getting insurance andso on because of the ignorance or even prejudice of those who discover theoriginal registration. One important way in which these persons are harmed isin the inability to marry another person legitimately. Once a birth certificate issupplied, the marriage is cancelled because it would not be recognised as suchby the law. Therefore, serious harm can be caused to a person's ability to findwork, enter university, get insurance or get married if an original birthregistration is not changed or if others have access to the original information.It has to be remembered that, at least in Canada, all information orevents that affect vital event records remain in the records. Nothing is everwhether refusal to change birth certificate a violation of the EuropeanConvention on Human Rights," Commonwealth Law Bulletin 17, no. 1 (1991):268-270.37 Andrews, "Transsexual rights in the United Kingdom," pp. 263, 264.70expunged or destroyed. Therefore, from the example of this case study, birthregistrations should not be released into the care and control of archivalrepositories for one—hundred years following the date of the event. It ispossible to argue that this limit could be brought down to eighty years becauseit is unlikely that an individual if they go through such surgery at age twentywill live beyond one—hundred years.The second example that proves the validity of a lengthy time—limit forthe retention of birth registrations by the gatekeepers is the quantitatively moresignificant event of adoption. In Great Britain, adopted children can receivecopies not just of their amended birth record but also the original withparticulars of biological parents, when such children reach the age of eighteenand have received mandatory counselling. The Registrar—General hasoccasionally denied access to an adopted person on the basis of criminal intentor the possibility of harm coming to the biological parents. As a result, someadopted persons so affected have attempted to sue for release of the records onthe basis of denial of their statutory rights.The court upheld the original decision of the Registrar General becausethere was clear evidence that disclosure of the information might causepossible harm to the biological mother or other members of the plaintiff'snatural family. In one case,38 the adopted child, having become an adult,38 A.P. Le Sueur, "Public Policies and the Adoption Act," Public Law(Autumn 1991): 326-331.71murdered one person in a park, without motive, and then a second person in ajail cell who he thought was his biological mother. Suggestions were alsomade of other possible reasons as to why the Registrar General might denystatutory access, including the possibility that an unscrupulous adoptee mightblackmail his or her biological parent(s) and protection of the biologicalparent(s) from having the knowledge that, as in the above case, their offspringwas a double—murderer.39The need for the debate that raged in Britain" between those on theone hand who argued that all persons should have total access because of thestatutory right to such information and those on the other side who argued thatthis right had to be limited in some way cannot occur in Canada because of thetotal ban on access to all information related to adoptions, including birthregistrations. It is precisely because of these types of possibilities that theCanadian system was put into place and precisely why birth records cannot bemade publicly accessible in an archives for an appropriately long period oftime. The suggested time—limit is eighty to one—hundred years from the event39 Le Sueur, "Public Policy and the Adoption Act," pp. 329, 331.4° Similarly, the argument in the United States that revolves aroundrelease of such adoption information into the hands of adopted persons,bypassing in some states sealed records statutes and in others upholding them,could also not occur in Canada for the same reasons. See Marilee C. Unruh,"Adoptees' Equal Protection Rights," UCLA Law Review 28, no. 6 (August1981): 1314-1364 and Carol Gloor, "Breaking the Seal: Constitutional andStatutory Approaches to Adult Adoptees' Right to Identity," NorthwesternUniversity Law Review 75, no. 2 (April 1980): 316-344.72because in all likelihood, the individuals involved in the adoption will be deador at least the issue of sensitivity will not be important at that late date.In effect, then, this method of attempting to find types of examplesprovides us with a relatively rational means of determining time—limits, whichis much better than the ad hoc method employed by the gatekeepers. We canuse this same method for all other registrations.Let us consider marriage registrations. The problem with discussingthis set of registrations using the method we have described above is that theredo not seem to be any cases where the issue of harm due to early release ofsuch information into a public environment exists. For example, if a marriagesubsequently ended in divorce and a notation is made on the original marriageregistration to that effect, it is possible that some person might gain access tothe information and use it to harm the reputation, job prospects and so on ofthe individuals involved but this is stretching the point of privacy to aridiculous degree. Since therefore there is a very low possibility of harmcoming from the release of these records at an earlier stage of their existenceit is suggested that a reduced time—limit is more acceptable for release into arepository, for example, from twenty to forty years from the event.It is necessary to proceed with the method of reasoning illustrated inthe previous pages when considering access to records subject to injury testsand for establishing time—limits It will facilitate transfer to repositories andopen accessibility. The method requires an understanding of the nature of the73records and the information they contain in each class as well as the nature ofinjuries which might occur to the subjects of the records from early disclosure.Time—limits will probably have to be established in the negotiations betweenarchivists and gatekeepers. This procedure might very well reveal that thetime—limits in ATIP legislation are incompatible with the most reasonableregime for vital event records. If that turns out to be the case, either the limitswill have to be adjusted to conform with the law or the law will have to bechanged.74CONCLUSIONThe importance of establishing open access and facilitating accessibilityto vital event records in an archives repository cannot be underestimated.These records are an important source of information for all researchers an itis information that cannot be found elsewhere. Despite these facts theserecords are among the most under—used and under—accessed records createdby government. Researchers as a whole have not been able to use theserecords since their establishment as a tool of the civil power in governingCanadian society. Open access to these records on the basis of annualtransfers is important because only open access will allow professionalresearchers such as historians and amateur researchers such as genealogists tomake full use of the records.It has only been in the last few years that the gatekeepers have allowedaccess to some researchers. That access has been granted in part because ofthe pressure put upon the gatekeepers from some researchers such asgenealogists, and in part due to the influence of ATIP. In fact, it is interestingto note that Ontario, one of the two sets of gatekeepers in Canada that hasregular transfers of vital event records to their respective repositories, theother being Quebec, have allowed annual transfers of vital event records torepositories has done so only in the last few years and primarily because of theinfluence of ATIP.75Access has been so limited due to both discretionary rules establishedby the gatekeepers over time and the influence of that discretionary attitudecolouring the vital statistics legislation. As a result, only some researchersgained access. For example, at the one end of the researcher scale only somegenealogists might be granted access and others no access. At the other end ofthe scale, for example, the gatekeepers in British Columbia have long had arelationship with the University of British Columbia whereby its medicalresearchers and sociologists make use of vital event records, without of coursedisclosing any personal information. Researchers at Simon Fraser Universityand the University of Victoria have not had such extensive access. Thediscretion of the gatekeepers has played a large part in deciding issues ofresearcher access. This problem of unequal access would be solved by openaccess to records transferred annually because all researchers would then haveequal opportunity for access to the same set of records.In the history of its deliberations about all issues of vital event records,the gatekeepers did not ask the question about access except to either deny italtogether or occasionally acknowledge the issue with the result that nochange was made in the prevailing attitude. Since the question has never beenasked, it is hardly surprising that there has been no answer sought to theproblem. With ATIP regimes being established across the country the questionhas come up once again and there is no way to escape it. Once the question isconfronted, however, it is likely that the answer to the access problem must be76tied to a determination of when each class of records ceases to have a greatdeal of administrative value and no longer carries the risk of possible harm ifreleased earlier.An archives repository is the most appropriate place to allow such openaccess and facilitate accessibility to the records because it is the mandate of arepository to insure that access and to facilitate that accessibility. While allgovernment agencies have to have mechanisms in place to deal withresearchers due to the demands of the ATIP regime facilitating researchers isnot the prime goal in their mandate. An essential part of the repositoriesmandate is to ensure the physical preservation of all records in its care forfuture use. The agency creating records do so for administrative use. Oncethat use has diminished or faded entirely, the agency has no further ongoinguse for the record and the record or a copy of it can be transferred to anarchives for non—administrative use and preservation. An archives repositorycan be a significant help to the gatekeepers in this respect by reducing some ofthe workload, once vital event records are being regularly transferred.It remains important to mention the need for uniformity of actionregarding the establishment of access to vital event records. The history ofvital statistics legislation has revealed the concern of the gatekeepers forcountry—wide uniformity of legislation and rules that govern the creation ofvital event records. Such uniformity cannot be less important for theestablishment of access to these records as well.77A final point to make is that the solution of different time—limitsapplied to different classes of vital event records established through areasoned method of examining cases can be used beyond this thesis for otherrecords. In fact, such limits and reasoning would be applicable to any recordscreated by government to which access is granted only on the basis of thediscretion of gatekeepers or on the basis of injury tests that limit disclosure.For example, census records have lengthy time—limits fixed to them for similarreasons that vital event records are subject to such limits. It is worthinvestigating whether those limits attached to the census records wereestablished on the basis of a method of reasoning, such as that advocated here,or whether those limits were chosen at random or on an ad hoc basis, as theywere by vital event records gatekeepers.The past arguments of the gatekeepers regarding access to vital eventrecords cannot be sustained. Under the regime established by ATIP, thepersonal information contained in vital event records is not substantiallydifferent from personal information contained in any other government records.Vital event records can be treated in the same manner as other records aretreated under ATIP. This thesis has addressed the legitimate concern of thegatekeepers for the privacy of subjects and attempted to balance it in someacceptable manner with the right of access to these records. Gatekeepers andarchivists together can establish this balance through using a method such asthat advocated here, thereby establishing mandatory rules for the release of78whole classes of records for public access by means of examining cases of lawwhere issues related to vital events have arisen.79APPENDIX AExtract from, "An Act Respecting The Registration of Births, Marriages,Deaths and Other Vital Events," in Conference of Commissioners onUniformity of Legislation in Canada, Proceedings of the Thirty—first AnnualMeeting of the Conference of Commissioners on Uniformity of Legislation inCanada Appendix G (Calgary, Alberta: 1949), pp. 63-65.SEARCHES30. (1) Any person, upon applying, furnishing informationsatisfactory to the Director and paying the prescribed fee, may, if theDirector is satisfied that the information is not to be used for anunlawful or improper purpose, have a search made by the Director,(a) for the registration in his office of any birth, stillbirth,marriage, death,adoption, change of name, or dissolution orannulment of marriage; or(b) for the record of any baptism, marriage or burial placed onfile in the office of the Director under section 20 [churchrecords].(2) The Director shall make a report on the search which shallstate whether or not the birth,stillbirth, marriage,death, adoption, changeof name, or dissolution or annulment of marriage, baptism or burial isregistered or recorded and, if registered, shall state the registrationnumber thereof, and shall contain no further information.ISSUANCE OF CERTIFICATES AND COPIES31. (1) Any person, upon applying, furnishing informationsatisfactory to the Director and paying the prescribed fee, may, if theDirector is satisfied that it is not to be used for an unlawful orimproper purpose, obtain a certificate in the prescribed form in respectof the registration of the birth of any person, which certificate shallcontain the following particulars only of the registration:(a) the name of the person;(b) the date of birth;(c) the place of birth;80(d) the sex of the person;(e) the date of registration; and(f) the serial number of the registration.(2) A certified copy or photographic print of theregistration of a birth may be issued only,(a) to a person who requires it to comply with The AdoptionAct;(b) to an officer of the Crown in right of the province whorequires it for use in the discharge of his official duties; or(c) to a person upon the authority in writing of the Minister orupon the order of a judge of a court,and only upon application in the prescribed form and uponpayment of the prescribed fee.(3) Any person, upon applying, furnishing informationsatisfactory to the Director and paying the prescribed fee, may, if theDirector is satisfied that it is not to be used for an unlawful orimproper purpose, obtain a certificate in the prescribed form in respectof the registration of a marriage of any person, which certificate shallcontain the following particulars only of the registration:(a) the names of the parties to the marriage;(b) the date of the marriage;(c) the place where the marriage was solemnized;(d) the date of registration; and(e) the serial number of the registration.(4) A certified copy or photographic print of the registration ofa birth may be issued only,(a) to a party to the marriage;(b) to a person upon the authority in writing of the Minister; or(c) to a person upon the order of a judge of a court,and only upon application in the prescribed form and uponpayment of the prescribed fee.(5) Any person, upon applying, furnishing informationsatisfactory to the Director and paying the prescribed fee, may, if theDirector is satisfied that it is not to be used for an unlawful or81improper purpose and subject to subsection (6), obtain a certificate inthe prescribed form in respect of the registration of a death.(6) No certificate shall be issued in respect of the registrationof a death shall be issued in such a manner as to disclose the cause ofdeath as certified on the medical certificate, except,(a) upon the authority in writing of the Minister; or(b) upon the order of a judge of a court.(7) A certified copy or photographic print of the registration ofa death may be issued only,(a) to a person upon the authority in writing of theMinister; or(b) to a person upon the order of a judge of a court,and only upon application in the prescribed form and uponpayment of the prescribed fee.(8) Any person, upon applying in the prescribed form andpaying the prescribed fee, may, with the approval of the Director andsubject to the same limitations as those respecting certified copies andphotographic prints set out in subsections (2), (4) and (7), obtain acertificate in the prescribed form in respect of the record of a baptism,marriage or burial placed on file under section 20 [church records].(9) No certificate, certified copy or photographic print shall beissued under this Act in respect of the registration of an adoption,change of name, or dissolution or annulment of marriage.82APPENDIX BExtract from, "Uniform Vital Statistics Act," in Uniform Law Conference ofCanada, Proceedings of the Sixty—Eighth Annual Meeting Appendix N(Winnipeg, Manitoba: August 1986): 499-502.SEARCH OF RECORDS30. (1) Any person, on applying, furnishing informationsatisfactory to the director and paying the prescribed fee, may, if thedirector is satisfied that the search information is not to be used for anunlawful or improper purpose, have a search made by the director(a) for the registration of any birth, stillbirth, marriage, death,change of name or annulment of marriage, or(b) for the record of any baptism, marriage or burial placed onfile in the office of the director under section 27.(2) The director shall make a report on the search which shallstate only the following information:(a) whether or not the birth, stillbirth, marriage, death, change ofname, annulment of marriage, baptism or burial is registered orrecorded;(b) if registered, its registration number.ISSUE OF CERTIFICATES AND COPIES31. (1) A certificate of birth or marriage may be issued by thedirector, on application in the prescribed form and on payment of theprescribed fee, only to(a) a person named in the certificate,(b) a parent whose name appears on the registrationform which the certificate is to be issued,(c) a spouse of a person whose name appears on theregistration form which the certificate is to be issued,(d) a person on the authorization in writing of theperson named in the certificate or of the parents or83spouse of the person named in the certificate,(e) a lawyer acting for the person named in thecertificate or for the parents or spouse of the personnamed in the certificate,(f) a person on the order of a court,(g) a public officer who requires it for use in thedischarge of official duties, or(h) a person on the authority in writing of theMinister.(2) A birth certificate shall contain(a) the name of the person,(b) the date of birth,(c) the place of birth,(d) the sex of the person,(e) the date of registration, and(f) the registration number,and may contain the names of the parents.(3) A copy or certified copy of the registration of a birthmay be issued by the director on application in the prescribed form andon payment of the prescribed fee only to(a) the person to whom the registration applies, ifthat person is an adult,(b) a person who is shown on the registration as themother or father of the person in respect of whom theregistration applies,(c) a person who requires it to comply with the(Adoption Act),(d) a public officer who requires it for use in thedischarge of official duties,(e) a person on the order of a court, or(f) a person on the authority in writing of theMinister.(4) A copy or certified copy of the registration of a marriagemay be issued by the director on application in the prescribed form andon payment of the prescribed fee only to(a) a party to the marriage,84(b) a person on the authority in writing of a party tothe marriage,(c) a lawyer acting for a party to the marriage,(d) the legal representative of a party to themarriage,(e) a person on the order of a court, or(f) a person on the authority in writing of theMinister.(5) Any person, on applying, furnishing informationsatisfactory to the director and paying the prescribed fee, may, subjectto subsection (6), obtain a certificate in the prescribed form in respectof the registration of a death.(6) No certificate issued in respect of the registration of adeath shall be issued in a manner that discloses the cause of death ascertified on the medical certificate, except(a) to the mother, father, brother, sister, spouse orcommon law spouse of the deceased or to the adultchild of the deceased,(b) on the authority in writing of the Minister, or(c) on the order of a court.(7) A copy or certified copy of the registration ofa death or stillbirth may only be issued on applicationin the prescribed form and on payment of theprescribed fee to a person(a) on the authority in writing of the Minister,(b) on the order of a court, or(c) who satisfies the director that it is required toaccompany an application to disinter a body.(8) The director may refuse to issue a certificate, copy orcertified copy under this section if the director has reason to believethat the document is to be used for an unlawful or improper purpose.(9) Any person, on application in the prescribed form and onpayment of the prescribed fee, may, with the approval of the directorand subject to the same limitations as those set out in subsections (1),(3), (4), (6) and (7), obtain a certificate in the prescribed form inrespect of the record of a baptism, marriage or burial placed on fileunder section 27 [church records].85(10) In respect of the issuance of the certificates, copies orcertified copies, or any of them, mentioned in subsections(1),(3),(4),(6),(7) and (9), the Minister may in writing dispense with theauthority required form him by those subsections or may dispense withthat authority in cases and circumstances specified by him.(11) No certificate, copy or certified copy shall be issuedunder this Act in respect of the registration of an adoption, change ofname or annulment of marriage.(12) Notwithstanding subsections (1),(3),(4),(6),(7) and (9),any person, on application in the prescribed form and on payment ofthe prescribed fee, may obtain a copy or certified copy of(a) a registration of birth, stillbirth, marriage or death, or(b) the record of a baptism, marriage or burial placedon file under section 27after 100 years after the event that was registered or recorded.86APPENDIX C-B CARS QUESTIONNAIRE'A copy of the questionnaire with its questions follows this collated list. Onlythe Northwest Territories did not respond to the questionnaire. Nor were theanswers to the questions for that jurisdiction found in any other way.1. Microfilm? 2. Original hard—copy?^3. How long?Alta X X PermanentlyMan X X PermanentlyNB X X PermanentlyNS X X PermanentlyOnt X' X PermanentlySas X X PermanentlyYuk No' — —BC4 X X PermanentlyPEI X X PermanentlyNFLD X5 X PermanentlyQue6 X X Permanently1 Used with permission of the British Columbia Archives and RecordsService.2 No longer microfilming—since April 1990. Now use imaging process.3 Has a computer database since 1985.4 BC, PEI, and Nfld filled out same questionnaire sent by the author tothem in February 1993. BC data in square brackets added by author fromvital event ongoing records schedules. Only NWT did not supply information.5 Has implemented a computerized microfilm retrieval system in 1992.6 Que data was taken from an information sheet put out by the Registre dereference a l'etat civil called "Genealogical Searches of Quebec records".874. Transfer? 5. Agreement type 6. If Not transferred—indices opened topublic?'Alta Indices Legislation B-1905-81/M-1922-82/D-1903-79Man Originals Protocol N/ANB Originals (B,M,D) Protocol 100 yrs from date ofevent and oncetransferredadministered byArchives ActNS No N/A N/AOnt Originals (all) Legislation N/ASas No N/A N/AYuk Pending Protocol Not openBC No[yes—m/f]Protocol (if done)[approval ofDirector]N/APEI Yes N/A Not openNFLD Yes Protocol 100 yrs—BQue Yes Legislation N/A7. If transferred, what access restrictions?Alta^B-100yrs/M-75yrs/D-50yrsMan Vital Statistics Office approvalNB^B,M,D,Indices-100yrsNS N/AOnt^A-100yrs/B-95yrs/M and Divorce-80yrs/D-70yrsSas N/AYuk^N/ABC Adoption records—never[A11-20yrs—paper originals, M/F]PEI^N/ANFLD^N/AQue All registers-100yrs7 Only NB clearly states when the time—limit would begin. All others donot explicitly state that the limit would begin as of the date of the vital event.88VITAL EVENT RECORDS QUESTIONNAIRE I^Do you microfilm vital event records?YES^ NOIf no, do you use any other form of imaging/preservation systemfor these records?YES^ NOIf yes, please describe.2^If you do microfilm vital event records, what happens to theoriginal hardcopy records upon completion of microfilming?Do you keep them?^YES  ^NODo you destroy them?^YES  NOOther?^ YES^NOIf other, please elaborate.3^If your agency retains the original hardcopy records aftermicrofilming, for what length of time are they kept?Number of daysNumber of monthsNumber of yearsPermanentlyOtherIf other, please elaborate.4^Do you ever transfer vital event records into archival custody?YES^ NOIf yes, which vital event records are transferred?adoption records^YES^ NO ^birth records YES NO ^marriage records^YES NOdeath records YES^ NO ^divorce records^YES NO ^indices^ YES NOWhat media format of the records is transfered? (i.e.microfilm, magnetic tape, etc.)Original hardcopy records^YES  ^NO ^Computer printouts^YES^NOElectronic records YES NO ^Microfilm/Microfiche^YES NO5^If you do transfer vital event records to archival custody is thisarranged through a protocol agreement with the archives or throughlegislation?6^If vital event records are not transfered to archival custody, isthere a point at which the records or the indices are opened togenealogists and other researchers for general research purposes?Conditions imposed on use/access?907^If vital event records are transfered to archival custody, whataccess restrictions are imposed? (i.e. How long before thegeneral public can access this material? If indices are created,are there different access restrictions imposed for them?)Adoption records years Index yearsBirth records years Index yearsMarriage records years Index yearsDeath records years Index yearsDivorce records years Index ^ yearsIf there are any other access restrictions imposed, pleasedescribe.Completed By: ^Title:91APPENDIX-D3.2 Privacy RegulationsThe regulations relevant to subsection 8(3) of the Privacy Act may be found inOrder—in—Council P.C. 1983-1668, and cited as the "Privacy Regulations."The conditions for disclosure of archival or historical personal information forresearch or statistical purposes are set out in section 6 of the regulations asfollows:Personal information that has been transferred to the control of thePublic Archives by a government institution for archival or historicalpurposes may be disclosed to any person or body for research orstatistical purposes where:(a) the information is of such a nature that disclosure would notconstitute an unwarranted invasion of the privacy of the individual towhom the information relates;(b) the disclosure is in accordance with paragraph 8(2)(j) [that no otherway can the research be done without disclosure of individuals and awritten statement that the person(s) will not be identified] or (k) [to anyaboriginal group seeking any kind of redress of grievances] of the Act;(c) 110 years have elapsed following the birth of the individual towhom the information relates; or(d) in cases where the information was obtained through the taking of acensus or survey, 92 years have elapsed following the census or surveycontaining the information.4.1 Unwarranted Invasion of Privacy and the Invasion-of-Privacy TestRegulation 6a states that the Public Archives may disclose personalinformation for research purposes if "the information is of such a nature thatdisclosure would not constitute an unwarranted invasion of the privacy of theindividual to whom the information relates." Discretion to differentiatebetween those types of personal information which would or would notconstitute and unwarranted invasion of privacy is given to the DominionArchivist. An invasion—of—privacy test is used to determine whetherdisclosure of personal information for historical research constitutes or doesnot constitute an unwarranted invasion of privacy.Unwarranted invasion of privacy is a situation whereby after applying theinvasion—of—privacy test described below, the disclosure of personal92information would clearly result in harm or injury to the individual to whom itpertains. Personal information would in the custody of the Public Archiveswill not be disclosed for research purposes under clause 8(3) of the Privacy Au if that disclosure constitutes an unwarranted invasion of privacy of theindividual to whom it pertains. Personal information about one person mayinclude incidental personal information about another person whose privacymust be taken into account before disclosure.There are four interrelated factors which must be taken into account in theinvasion—of—privacy test. These are as follows:(a) Expectations of the individual. The conditions which governed thecollection of the personal information and the expectations of theindividual to whom it relates are important criteria in any test. Was theinformation compiled or obtained under guarantees which precludesome or all types of disclosures? Or, on the other hand, can theinformation be considered to have been unsolicited or given freely orvoluntarily with little expectation or being maintained in totalconfidence? Has the individual himself or herself made a version ofthe information public and thus waived the right to privacy?(b) Sensitivity of the information. The degree of sensitivity of theinformation must be determined. Is it of a highly sensitive personalnature or is it fairly innocuous information? Is the information verycurrent and for that reason more sensitive or confidential, or has thepassage of time reduced that sensitivity or confidentiality so thatdisclosure under specific circumstances would lead to no measurableinjury to the individual's privacy?(c) Probability of Injury. If the information is considered sensitive,can it be surmised that the particular disclosure carries with it theprobability of causing measurable injury? Injury is to be interpreted asany harm or embarrassment which will have direct negative effects onan individual's career, reputation, financial position, health or well—being. As well, the Dominion Archivist must consider if a disclosureof personal information will make that information available for adecision—making process by a government institution.(d) Context of the file. The personal information must be assessed inrelation to the entire file and not in isolation in order to determine thatdisclosure of the information does not form part of a crucial segment ofa larger picture that could reasonably be expected to be injurious to theindividual.93Guidelines for the Disclosure of Personal Information For Historical Researchat the Public Archives of Canada. Public Archives of Canada. Ottawa, 1985,Minister of Supply and Services. pp. 3,4.94BIBLIOGRAPHYLEGISLATION AND CASES Alberta. Amendment Act. 1924. 14-15 Geo. 5, c. 28.Alberta. Amendment Act. 1942. 6 Geo. 5, c. 21.Alberta. Revised Statutes of Alberta. 1922. 12-13 Geo. 5, c. 24Alberta. Revised Statutes of Alberta. 1980. 29 Eliz. 2, c. V4.Alberta. Vital Statistics Act. 1907. 6-7 Ed. 7, c. 13.Alberta. Vital Statistics Act. 1916. 6-7 Geo 5, c. 22.Alberta. Vital Statistics Act. 1959. 7-8 Eliz. 2, c. 94.Alberta. Vital Statistics Act. 33-34 Eliz. 2, Reg. 304/85.Alberta Vital Statistics Act. 40-41 Eliz. 2, 195/92.British Columbia. Amendment Act. 1921. 11-12 Geo. 5, c. 70.British Columbia. Amendment Act. 1935. 25-26 Geo 5, c. 87British Columbia. Amendment Act. 1938. 2 Geo. 6, c. 64.British Columbia. Freedom of Information and Protection of Privacy Act. Bill50. 1992. 41 Eliz. II. Passed Third reading 23 June 1992.British Columbia. Revised Statutes of British Columbia. 1936.1 Edw. 8, c. 302.British Columbia. Revised Statutes of British Columbia. 1948. 12 Geo. 6, c.357.British Columbia. Revised Statutes of British Columbia. 1979. 28 Eliz. 2, c.425.British Columbia. Vital Statistics Act. 1872. 35 Vict, no. 26.95British Columbia. Vital Statistics Act. 1913. 3-4 Geo 5, c. 81British Columbia. Vital Statistics Act. 1933. 24 Geo 5, c. 73.British Columbia. Vital Statistics Act. 1962, second session. 10-11 Eliz. 2, c.66.British Columbia. Vital Statistics Act. 38-39 Eliz. 2, Reg. 375/90.British Columbia. Vital Statistics Act. 39-40 Eliz. 2, Reg. 11/91.Canada. Access to Information Act. 1980-81-82-83. 29-32 Eliz. 2, c.111.Canada. Human Rights Act. 1976-77. 25-26 Eliz. 2, c. 33.Canada. Privacy Act. 1980-81-82-83. 29-32 Eliz. 2, c. P21.Canada. Privy Council 4851. July 31, 1945. 9-10 Geo. 6. PrivyCouncil Office Records, R.G. 2, vol. 1907, National Archives ofCanada.[cited 37 Can. Abr. (2nd)] Love Estate, Re (1968), 64 W.W.R. 190 (Alta.T.D.).Manitoba. Amendment Act. 1887. 50-51 Vict, c. 14.Manitoba. Amendment Act. 1931. 22 Geo. 5, c. 55.Manitoba. Freedom of Information Act. 1985-86. 33-35 Eliz. 2, c. 6.Manitoba. Revised Statutes of Manitoba. 1987. 35-36 Eliz. 2, c. V60.Manitoba. Vital Statistics Act. 1890. 53 Vict, c. 29.Manitoba. Vital Statistics Act. 1912. 2 Geo. 5, c. 97.Manitoba. Vital Statistics Act. 1933. 24 Geo. 5, c. 51.Manitoba. Vital Statistics Act. 1951. 14-15 Geo. 6, c. 66.Manitoba. Vital Statistics Act. 36-37 Eliz. 2, Reg. 308/88.Manitoba. Vital Statistics Act. 40-41 Eliz. 2, Reg. 62/92.96New Brunswick. Revised Statutes of New Brunswick. 1903. 3 Ed. 7, c. 54.New Brunswick. Vital Statistics Act. 1887. 50-51 Vict, c. V.New Brunswick. Vital Statistics Act. 1979. 28 Eliz. 2, c. V3.New Brunswick. Vital Statistics Act. 32 Eliz. 2, Reg. 83-104.Newfoundland. Amendment Act. 1977. 26 Eliz. 2, c. 101.Newfoundland. Freedom of Information Act. 1981. 30 Eliz. 2, c. 5.Newfoundland. Privacy Act. 1981. 29-30 Eliz. 2, c. 6.Newfoundland. Privacy Act. 1990. 38-39 Eliz. 2, c. P22.Newfoundland. Vital Statistics Act. 1892. 55-56 Vict, c. 28.Newfoundland. Vital Statistics Act. 1990. 38 Eliz. 2, c. V6.Northwest Territories. Vital Statistics Act. 1974. 23 Eliz. 2, c. V4.Northwest Territories. Vital Statistics Act. 1952, second session. 1-2 Eliz. 2,c. 6.Nova Scotia. Amendment Act. 1914. 4-5 Geo. 5, c. 44.Nova Scotia. Amendment Act. 1941. 5 Geo. 6, c. 21.Nova Scotia. Amendment Act. 1951. 15 Geo. 6, c. 56.Nova Scotia. Freedom of Information Act. 1990. 38-39 Eliz. 2, c. 11.Nova Scotia. Revised Statutes of Nova Scotia. 1908. 7 Ed. 7, c. 1.Nova Scotia. Revised Statutes of Nova Scotia. 1989. 37-38 Eliz. 2, c. 494.Nova Scotia. Vital Statistics Act. 1864. 27-28 Vict, c. 120.Nova Scotia. Vital Statistics Act. 1919. 9-10 Geo. 5, c. 3.Nova Scotia. Vital Statistics Act. 1952. 1 Eliz. 2, c. 8.Ontario. Access to Information Act. 1990. 38-39 Eliz. 2, c. F31.97Ontario. Amendment Act. 1931. 22 Geo. 5, c. 21.Ontario Amendment Act. 1986. 34-35 Eliz. 2, c. 9.Ontario. Freedom of Information and Protection of Privacy Act. 1990. 38-39Eliz. 2, c. F31.Ontario. Revised Statutes of Ontario. 1990. 38-39 Eliz. 2, c. V4.Ontario. Statute Law Amendment Act. 1927. 17 Geo. 5, c. 28.Ontario. Statute Law Amendment Act. 1941. 5 Geo. 6, c. 55.Ontario. Vital Statistics Act. 1868-69. 31-32 Vict, c. 30.Ontario. Vital Statistics Act. 1875-76. 38-39 Vict, c. 2.Ontario. Vital Statistics Act. 1908. 7 Ed. 7, c. 28.Ontario. Vital Statistics Act. 1919. 10 Geo. 5, c. 23.Ontario. Vital Statistics Act. 1948. 11-12 Geo. 6, c. 97.Ontario. Vital Statistics Act. 29 Eliz. 2, Reg. 942/80.Ontario. Vital Statistics Act. 38-39 Eliz. 2, Reg. 1094/90.Prince Edward Island. Amendment Act. 1945. 9-10 Geo. 6, c. 35.Prince Edward Island. Revised Statues of Prince Edward Island. 36-37 Eliz. 2,1988. c. V4.Prince Edward Island. Vital Statistics Act. 1906. 6 Ed. 7, c. 6.Prince Edward Island. Vital Statistics Act. 1919. 9-10 Geo. 5, c. 10Prince Edward Island. Vital Statistics Act. 1932. 23 Geo. 5, c. 11.Prince Edward Island. Vital Statistics Act. 1950. 14 Geo. 6, c. 31.Quebec. Access to Documents. 1982. 31 Eliz. 2, c. 30.Quebec. Le Code Civil Annote. 1866. 29-30 Vict.98Saskatchewan. Freedom of Information and Protection of Privacy Act. 1990-91. 38-40 Eliz. 2, c. F-22.01.Saskatchewan. Amendment Act. 1921-22. 11-12 Geo. 5, c. 16.Saskatchewan. Amendment Act. 1930. 20-21 Geo. 5, c. 14.Saskatchewan. Amendment Act. 1932. 22-23 Geo. 5, c. 6.Saskatchewan. Freedom of Information and Privacy Act. 1990-91. 38-39Eliz. 2, c. F22.01.Saskatchewan. Privacy Act. 1978. 27 Eliz. 2, c. P24.Saskatchewan. Revised Statutes of Saskatchewan. 1940. 4 Geo. 6, c. 36.Saskatchewan. Revised Statutes of Saskatchewan. 1979. 28 Eliz. 2, c. V7.Saskatchewan. Vital Statistics Act. 1898. 62-63 Vict, c. 14.Saskatchewan. Vital Statistics Act. 1919-20. 10-11 Geo. 5, c. 11.Saskatchewan. Vital Statistics Act. 1924-25. 14-15 Geo 5, c. 6.Saskatchewan. Vital Statistics Act. 1950. 14 Geo. 6, c. 13.Saskatchewan. Vital Statistics Act. 1978. 27 Eliz. 2, c. V7.Yukon. Access to Information Act. 1986. 34-35 Eliz. 2, c. 1.Yukon. Revised Statutes of Yukon. 1986. 34-35 Eliz. 2, c. 175.Yukon. Vital Statistics Act. 1954. 3 Eliz. 2, c. 38.Yukon and Northwest Territories. Vital Statistics Act. 1888. 51 Vict, no. 6.SECONDARY SOURCESAndrews, John and Ann Sherlock. "Transsexual Rights in the UnitedKingdom." European Law Review 16, no. 3 (1991): 262-266.Baldwin, Robert and John Houghton, "Circular Arguments: The Status and99Legitimacy of Administrative Rules," Public Law (Summer 1986):239-284.Bellardo Lewis J. and Lynn Lady Bellardo. Compilers. A Glossary forArchivists, Manuscript Curators, and Records Managers. Chicago: TheSociety of American Archivists, 1992.Brand, I.C. "Louis D. Brandeis," Canadian Bar Review 25 (1947): 240-250.British Columbia. Sixty—Sixth Report of Vital Statistics of the Province ofBritish Columbia. Victoria: Charles F. Banfield, Printer to His Majesty,1937.. Sixty—Seventh Report of Vital Statistics of the Province of BritishColumbia. Victoria: Charles F. Banfield, Printer to His Majesty, 1938.British Columbia. Provincial Board of Health. Vital Statistics of the Province of British Columbia: Seven —sixth Resort for the Year 1947. Victoria:Provincial Board of Health, 1947.British Columbia. Department of Health and Welfare. 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Verbatim Report of the Fifth Dominion—Provincial Conference onVital Statistics, December 1-4. 1947, "Draft Model Vital StatisticsAct," Introduction, Appendix C, Ottawa: Pub., by the authority of Hon.James A. MacKinnon, M.P., Minister of Trade and Commerce, 1948:100347-367.Canada. Dominion Bureau of Statistics. Report of the Conference on VitalStatistics Between Representatives of the Dominion and ProvincialGovernments. Ottawa: Dominion Bureau of Statistics, 1918.^. Vital Statistics 1921: First Annual Report. Ottawa: F.A. Acland,Printer to the King's Most Excellent Majesty, 1923.Canada. Task Force on Government Information. To Know and Be Known: The Report of the Task Force on Government Information.  Vol. 1.Ottawa: Task Force on Government Information, 1969.Coats, R.H. "Co—ordination of Vital Statistics in Canada." OpeningAddress to the 1918 Conference on Vital Statistics, Dominion ofCanada. Report of the Conference on Vital Statistics BetweenRepresentatives of the Dominion and Provincial Governments. Ottawa:Dominion Bureau of Statistics, 1918.Commonwealth Secretariat. "Right to respect for private life—sexchange—whether refusal to change birth certificate a violation of theEuropean Convention on Human Rights." Commonwealth Law Bulletin17, no. 1 (January 1991): 268-270.Conference of Commissioners on Uniformity of Legislation in Canada.Proceedings of the Thirty—First Annual Meeting. Calgary, Alberta.August 23-27, 1949.. "An Act Respecting The Registration of Births, Marriages, Deathsand Other Vital Events." In Proceedings of the Thirty—first AnnualMeeting of the Conference of Commissioners on Uniformity ofLegislation in Canada. Appendix G. Calgary, Alberta. 23-27 August1949: 46-70.Couture, Carol and Jean—Yves Rousseau. The Life of a Document.Montreal: Vehicule Press, 1987.Detlefsen, Ellen. "User Costs: Information as a Social Good VS.Information as a Commodity." 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