you might suppose that information held by the federal government from early censuses would gradually become available 20 years after the deaths of the individuals surveyed. However, the federal census-taking itself is governed by its own law. There is controversy about records of censuses taken after 1911 because, when taking these later, twentieth-century censuses, the government told those filling out the census that it would keep census information confidential.5 Because no time limit was placed on this promise of confidentiality, the confidentiality promised eventually clashed with legislated time limits for public sector personal data protection legislated by Parliament much later in the twentieth century.6 The federal government’s solution, in the twenty-first century, has been to add a question to the 2006 census that asked members of households to consent to the release of information about themselves 92 years after the 2006 census.7 The result is that there are years of the census from the twentieth century from which information will never be available to current genealogists except as combined data, because individual data from each census between 1911 and 2001 will only become available 92 years after that census was done.8 And, furthermore, for at least the two census-takings beginning with the 2006 census, genealogists working 92 years from now will only be able to access the patchwork of records for those individuals who gave their consent to this access in the 2006 census and who decide to give it in the next census.9 This patchwork of availability seems the likely situation for all future censuses.10
The Globe and Mail has followed the movement of affected individuals to “opt out” of the new Ontario adoption information regime. See Erin Anderson, “Few People Push to Maintain Privacy as Ontario Set to Open Adoption Files,” Globe and Mail, May 26, 2009; available at www.theglobeandmail.com/news/national/opening-adoption-records-in-ontario-prompts-few-requests-for-secrecy/article1152431.
Another area of the law where general personal data protection legislation has been overridden in some instances by specific statutory provisions is in the context of adoption records. In June 2009, Ontario’s new Access to Adoption Records Act came into force. The act dramatically alters the data protection environment for these records in Ontario, bringing it into line with similar laws already in place in British Columbia, Alberta, Manitoba, and Newfoundland and Labrador. This legislation allows birth parents and adopted children access to previously inaccessible, “sealed” adoption records so they can locate each other.
Patchwork Problems in Other Countries
An editorial in a U.S.-based Jewish genealogical association newsletter details similar problems with patchwork legislation in the United States. Concerned with the limited access to information inherent in data protection laws, it discusses whether enforcement techniques often only hinder honest attempts to access data while doing little against determined illegal access. Detailing a personal experience of the author, two branches of a family, separated during the Holocaust, were reunited because of information available in California. If the family had lived in New Jersey, on the other hand, the discovery of the missing family members would never have occurred because New Jersey has stricter data protection legislation. 11
Paradoxically, this legislation may make it easier for children and parents involved in adoptions to locate their parents and children, respectively, than for children and parents not involved in adoptions to locate each other once they have lost track of each other.
Records Held in the Private Sector
Until 2004, personal data protection legislation in Canada (except Quebec) affected only government bodies. In 2004, a new piece of legislation, which the federal government had passed in 2001, came into full effect: the Personal Information Protection and Electronic Documents Act [PIPEDA]. This statute has signalled a new era in Canada — personal data protection is now an obligation imposed on private sector organizations as well as on public sector ones. Indeed, because PIPEDA applies to all organizations engaged in commercial activities, it is possible that we now have a greater scope for personal data protection in the private sector in Canada than in the public. This situation will probably not persist for long. In Ontario, for example, universities were originally not covered by either the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act but the McGuinty provincial government (elected in 2003, re-elected in 2007) brought them all under the Freedom of Information and Protection of Privacy Act in 2006.
There is no corresponding access legislation covering information held in private sector organizations. This means that, although private sector organizations are legally obliged to protect information about identifiable individuals, there is no requirement on a private sector organization in Canada, even after personal data protection time periods have expired, to make any information available to anyone. This will probably signal a general tightening up for genealogists of information held by private sector organizations in Canada.
Federally regulated businesses in Canada, such as airlines and those in the banking industry, as well as businesses in certain provinces and territories (the Maritimes, Saskatchewan, Manitoba, and Ontario) must comply with PIPEDA. Because the constitutional ability of our federal Parliament to pass such a sweeping statute governing the whole business sector in Canada is in some doubt, the federal government has left room for the provinces to pass their own, similar, legislation for the private sector. Quebec already had such legislation, which has been deemed equivalent to PIPEDA. British Columbia and Alberta have followed suit with their own statutes, also deemed equivalent. Thus private sector organizations in Quebec, British Columbia, and Alberta must generally comply with their respective provincial statutes and not with PIPEDA.
Health information is a particular category of personal information that has fallen under a variety of provincial laws as well as, in some respects, under PIPEDA. This is an area of changing laws in Canada and genealogists may wish to keep up to date on changes in this area in the future. (An excellent source is the website of the Privacy Commissioner of Canada at www.priv.gc.ca/index_e.cfm.) Some provinces have enacted specific legislation to deal with personal health information.
Provincial Health Information Legislation
Alberta: Health Information Act, R.S.A. 2000, c. H-5
British Columbia: E-Health (Personal Health Information Access and Protection of Privacy) Act, S.B.C. 2008, c. 38
Manitoba: Personal Health Information Act, C.C.S.M., c. PP33.5
Newfoundland and Labrador: Personal Health Information Act, S.N.L. 2008, c. P-7.01 (not in force as of June 2009)
Ontario: Personal Health Information Act, 2004, S.O. 2004, c. 3, Sch. A
Saskatchewan: Health Information Protection Act, S.S. 1999, c. H-0.021
• In Ontario, the Personal Health Information Protection Act [PHIPA] is specific legislation passed by the Ontario Legislature that has also been approved by the federal government as equivalent to PIPEDA for most of the health sector (for health information custodians, as defined in the Ontario statute). Organizations subject to this act need only comply with it and not with the federal PIPEDA.
• In Alberta, there is a Health Information Act that has not been deemed equivalent to PIPEDA at the federal level and so the private sector organizations affected must currently comply with both Alberta’s HIA and PIPEDA. Public sector organizations covered by HIA
