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Dead or Alive?

Background

An individual associated with the hobby of medal collecting made frequent access requests to the Library and Archives of Canada (LAC) for information about the deceased persons who had been awarded the medals. The requester was aware that, by virtue of paragraph 3(m) of the Privacy Act, such information is protected "personal information" unless the medal recipient has been dead for 20 years or more. In the past, the LAC had been willing to assist the requester by verifying whether or not proof of death was contained in the file and, if so, whether it showed that 20 years or more had elapsed since death. By so doing, the LAC assisted the requester in determining whether or not he was entitled to receive the medal recipient’s file.

The complaint to the Information Commissioner was made after LAC changed its policy; it would no longer assist the requester in determining date of death. If the requester could not prove that he was seeking information about a person who had been dead for 20 years or more, LAC would not even begin looking through the requested file; rather, it would simply refuse access based on subsection 19(1) of the Access to Information Act.

Legal Issue

Who has the onus to prove that requested information is "personal" and, hence, qualifies for exemption from the right of access under subsection 19(1) of the Act? Is it the requester? Is it the government institution?

The investigation confirmed that LAC had changed its policy, now placing the onus on the requester to provide proof of death when seeking records about other persons – even if proof of death is contained on file. The LAC did not consider that it should continue to undertake confirmation of death research for access requesters, in order to verify for them whether or not requesters have a right of access to another person’s information.

The Information Commissioner disagreed with the LAC view. The jurisprudence is clear that the onus of proof that secrecy is justifiable is on the party asserting it, in this case, on the LAC. Before the LAC may invoke subsection 19(1) to refuse disclosure of requested information, it must be satisfied that the information is "personal", and information about a person who has been dead for 20 years or more is not "personal".

Consequently, if there is proof in the file that a person has been dead for 20 years or more, then the information must be disclosed to the requester.

The LAC promised to review its policy, and it disclosed the specific records requested by the complainant.

Lessons Learned

Whenever a government institution proposes to refuse disclosure on the basis of subsection 19(1) of the Act, it bears the onus of demonstrating that the information is "personal". If there is evidence in the file that the person to whom the information relates has been dead for 20 years or more, then the information is not "personal" and access may not be denied under subsection 19(1). 

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