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S.M. 2001, c. 35
THE ARCHIVES AND RECORDKEEPING ACT
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(Assented to July 6, 2001)
WHEREAS the preservation of records of archival value is a unique and priceless gift of one generation of Manitobans to another;
AND WHEREAS good recordkeeping by government supports accountability to the public and enables the preservation by the Archives of Manitoba of government records of lasting significance;
AND WHEREAS certain records of private organizations and persons, such as the records of the Hudson's Bay Company since 1670 which have been donated to Manitoba by the Hudson's Bay Company, are of enduring value and their preservation by the Archives of Manitoba enriches knowledge;
NOW THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"archival record" means a record of archival value
(a) that is a government record in the custody or under the control of the archivist after the expiry of the retention period set out in the records schedule relating to that record,
(b) that is a record referred to in sections 10 to 14 that, by agreement with the archivist,
(i) has been identified as a record of archival value, and
(ii) is in the custody of the archivist after the expiry of a retention period, or
(c) that is a record referred to in section 15 acquired by the archivist on behalf of the government; (« archives »)
"archives" means the Archives of Manitoba referred to in section 2; (« Archives »)
"archivist" means the Archivist of Manitoba referred to in section 3; (« archiviste »)
"chief judge" means
(a) in the case of The Court of Appeal, the Chief Justice of Manitoba,
(b) in the case of the Court of Queen's Bench, the Chief Justice of that court, and
(c) in the case of The Provincial Court, the Chief Judge of that court; (« juge en chef »)
"court" means The Court of Appeal, the Court of Queen's Bench or The Provincial Court; (« tribunal »)
"department" means a department, branch or office of the executive government of the province; (« ministère »)
"electronic" includes created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic, optical or any similar means; (« électronique »)
"government agency" means
(a) any board, commission, association, agency, or similar body, whether incorporated or unincorporated, all the members of which, or all the members of the board of management or board of directors or governing board of which, are appointed by an Act of the Legislature or by the Lieutenant Governor in Council, and
(b) any other body designated as a government agency in the regulations; (« organisme gouvernemental »)
"government body" means
(a) a department,
(b) a government agency,
(c) the Executive Council Office, and
(d) the office of a minister; (« entité gouvernementale »)
"government record" means a record created or received by, or for, a government body in carrying out its activities, but does not include
(a) personal or constituency records of a minister,
(b) library materials,
(c) artifacts, or
(d) a record received by the archivist under sections 10 to 15; (« document gouvernemental »)
"local authority" means
(a) a school division or school district established under The Public Schools Act,
(b) a local government district,
(c) a local committee, community council or incorporated community council under The Northern Affairs Act,
(d) a planning district established under The Planning Act,
(e) a conservation district established under The Conservation Districts Act, or
(f) any other body designated as a local authority in the regulations; (« administration locale »)
"minister" means a member of the executive council; (« ministre »)
"municipality" means a municipality that is continued or formed under The Municipal Act; (« municipalité »)
"record" means a record of information in any form, including electronic form, but does not include a mechanism or system for generating, sending, receiving, storing or otherwise processing information; (« document »)
"record of archival value" means a record of lasting significance to the government or society, such as a record
(a) relating to the legal basis, origin, development, organization or activities of the government or its institutions,
(b) relating to the development or implementation of policies of the government,
(c) relating to the history of Manitoba, or
(d) having historical value; (« document ayant une valeur archivistique »)
"records schedule" means a formal plan that identifies government records, establishes their retention periods and provides for their disposition; (« calendrier des délais de conservation »)
"responsible minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre responsable »)
ARCHIVES OF MANITOBA
The Provincial Archives, formerly known as The Archives and Public Records Branch, is continued as the Archives of Manitoba.
The archives is under the direction of an archivist, to be known as the Archivist of Manitoba, appointed in accordance with The Civil Service Act.
The archivist may appoint another person to act in his or her place in the event of the archivist's absence or inability to act.
The purposes of the archives are
(a) to provide for the identification and preservation of records of archival value to present and future generations;
(b) to promote and facilitate good recordkeeping respecting government records in order to support accountability and effective government administration;
(c) to make archival records known by means of promotion, publication, exhibition or loan and to facilitate access to them, in accordance with any rights of access provided by law, in legislation or by the terms or conditions of an agreement;
(d) to encourage and assist other organizations in good recordkeeping practices; and
(e) to encourage and assist archival activities and the archival community.
The responsible minister may give directions not inconsistent with this Act to the archivist, in relation to the exercise of his or her powers and the performance of his or her responsibilities and duties under this Act.
DUTIES AND RESPONSIBILITIES OF ARCHIVIST
The archivist is responsible
(a) for the care and management of all archival records and all other records that are in the custody or under the control of the archivist; and
(b) for facilitating access to archival records in accordance with any rights of access provided by law, in legislation or by the terms or conditions of an agreement.
With respect to government records, the archivist must
(a) establish policies, standards and guidelines for recordkeeping, including for the creation, identification, maintenance, retention, disposition, custody and protection of records;
(b) establish standards and guidelines as to the procedures to be followed where a record is to be retained or preserved in a form or medium other than the original one;
(c) designate records of archival value, in consultation with the government body by or for which the records were created or received;
(d) develop the records schedule process and establish any forms for use in this process;
(e) approve records schedules;
(f) carry out the responsibilities of the archivist with respect to records schedules that are approved under this Act; and
(g) preserve and protect archival records by
(i) taking them into the archivist's physical custody,
(ii) making arrangements with the government body by or for which the records were created or received, to retain custody, preserve and protect them in accordance with standards and requirements set by the archivist, or
(iii) making any other arrangements that the archivist considers appropriate to preserve and protect the records.
For government bodies, the archivist may provide a record storage facility and services relating to recordkeeping.
The archivist may enter into an agreement with the chief judge of a court with respect to the court's records, which may include
(a) providing advice to the court about recordkeeping;
(b) developing a plan as to the retention and disposition of the records by the archivist;
(c) providing storage for the records and recordkeeping services; and
(d) preserving and protecting archival records.
The archivist may enter into an agreement with the Speaker of the Legislative Assembly, the Clerk of the Legislative Assembly, the Chief Electoral Officer, the Ombudsman, the Children's Advocate or the Provincial Auditor with respect to the records of the Legislative Assembly or the officer, which may include the matters set out in clauses 10(a) to (d).
The archivist may enter into an agreement with a municipality with respect to its records, which may include
(a) providing advice to the municipality about recordkeeping;
(b) making arrangements with the municipality that are consistent with any regulations under The Municipal Act about retaining and disposing of records; and
(c) preserving and protecting records of archival value.
The archivist may enter into an agreement with a local authority with respect to its records, which may include
(a) providing advice to the local authority about recordkeeping;
(b) assisting the local authority in developing its own plans as to the retention and disposition of its records; and
(c) preserving and protecting records of archival value.
The archivist may enter into an agreement with a child and family services agency established under The Child and Family Services Act, with respect to records that are made or received by the agency for the purpose of carrying out the agency's responsibilities under that Act or The Adoption Act, and the agreement may include
(a) providing advice to the agency about recordkeeping;
(b) assisting the agency in carrying out its responsibilities as to the retention, storage and destruction of records as set out in regulations under The Child and Family Services Act or The Adoption Act; and
(c) preserving and protecting records of archival value.
The archivist may enter into an agreement with a private organization or person with respect to its records, which may include
(a) providing advice to the organization or person about recordkeeping;
(b) making arrangements for determining the archival value of the records and for preserving and protecting them;
(c) acquiring records of archival value on behalf of the government by gift, bequest, purchase or any other means and
(i) preserving and protecting them, and
(ii) facilitating access to them in accordance with the terms and conditions of the agreement.
Where the archivist determines that a record of a private organization or person is no longer of archival value to the Archives of Manitoba, and subject to the terms and conditions of any applicable agreement, the archivist may
(a) return the record to the private organization or person from which it was acquired;
(b) give the record to another archives, person or organization; or
(c) in exceptional circumstances, destroy the record.
The archivist may do such other things as are necessary or advisable to carry out the provisions of this Act.
GOVERNMENT RECORDS SCHEDULES
In consultation with the archivist, a government body must prepare one or more records schedules for government records in the custody or under the control of the government body in accordance with this Act and the policies, standards and guidelines established by the archivist.
A records schedule must be in the form established by the archivist and
(a) identify and describe the government records to which it relates;
(b) specify how long the records must be retained and in what form or medium, having regard to legal, administrative, financial and audit requirements and the need for accountability to the public;
(c) designate which records are records of archival value and in what form or medium they must be kept;
(d) with respect to records which are not designated as records of archival value, state whether they can be destroyed following the specified retention period;
(e) if records of archival value have been identified, specify the arrangements made for their preservation and protection under clause 8(g); and
(f) provide any other information about the records that the archivist considers necessary for their care and management.
Where the archivist considers it appropriate to include records of two or more government bodies in the same records schedule, the archivist may
(a) direct that a records schedule deal with records of two or more government bodies; and
(b) determine which government body or bodies must prepare and submit the records schedule for approval.
A government body must submit its proposed records schedule to the archivist for approval.
The archivist may consult with other officials as the archivist considers appropriate when reviewing a records schedule submitted for approval.
Where appropriate, a records schedule may be revised or replaced with a new records schedule, and the provisions of this Act apply with necessary changes.
A government body must retain and dispose of government records in accordance with approved records schedules.
With respect to government records that are archival records, a government body must take all reasonable steps to comply with any arrangements made under subclause 8(g)(ii) or (iii).
If an incorporated government agency is to be sold or otherwise disposed of, the minister responsible for the agency must ensure that the sale or disposition agreement provides for all records of the agency, up to the date of sale or disposition, that are
(a) designated as records of archival value under an approved records schedule; and
(b) not required by the purchasers for the ongoing operations of the agency;
to be transferred to the custody and control of the archivist on behalf of the government.
In this section, "land titles instrument" means a government record that is
(a) an instrument as defined in The Real Property Act; or
(b) an instrument as defined in The Registry Act and includes a book.
A land titles instrument that is in the archives
(a) is deemed to continue to be under the custody of the district registrar;
(b) continues to be admissible in evidence in any court; and
(c) is to be dealt with under the provisions of The Real Property Act or The Registry Act, as the case may be.
The archivist may, with respect to land titles instruments,
(a) provide advice to the district registrar about recordkeeping; and
(b) assist the district registrar in carrying out his or her responsibilities under The Real Property Act or The Registry Act as to the retention, storage, preservation or destruction of land titles instruments.
Where the retention and destruction of a government record is governed by a regulation under The Financial Administration Act,
(a) the record is to be dealt with in accordance with the provisions of that Act and regulation; and
(b) the archivist may assist the Minister of Finance in carrying out the provision of that Act and regulation with respect to the record.
A copy of a record in the archivist's custody that is made in any medium by means of any process and certified by the archivist to be a true copy,
(a) is proof, in the absence of evidence to the contrary, of the authenticity and correctness of the copy of the record, without proof of the appointment or signature of the archivist; and
(b) is admissible in evidence for the same purposes as the original of the record would have been admissible.
The archivist may delegate to any employee of the archives authority to certify copies issued under subsection (1).
(a) the original of a government record has been destroyed and a copy has been preserved in another medium; and
(b) the archivist, the minister or an official of the government body that has custody of the copy of the government record has certified that the copy was made in that other medium in accordance with the archivist's standards and guidelines, or an established practice;
the copy is admissible in evidence for the same purposes as the original of the record would have been admissible.
A proceeding for an order for recovery of possession of a government record, or a record acquired by the archivist on behalf of the government, unlawfully removed or withheld from the government or the archives shall be instituted in the name of the Crown and may be brought by notice of application in the Court of Queen's Bench.
No person shall, with an intent to deprive the government, a government body, or the archives, of the custody, control, use of or access to a government record,
(a) destroy or damage a government record;
(b) erase or remove information from a government record or make a government record illegible;
(c) remove or conceal a government record from the government, a government body or the archives; or
(d) direct, counsel or cause any person in any manner to do anything mentioned in clause (a), (b) or (c);
except as provided in a records schedule approved under this Act.
Subsection (1) does not apply to a person who retains or destroys a government record in accordance with
(a) The Financial Administration Act or a regulation under that Act;
(b) The Real Property Act or The Registry Act; or
(c) an enactment of the federal government.
A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine of not more than $50,000.
A prosecution under subsection (1) may be commenced not later than two years after the day the alleged offence was committed.
Subject to subsection (2), nothing in this Act or any other Act prevents the storage or processing of information generated or received by a government body by a person other than an employee or agent of the government body, and no person contravenes any Act or regulation by transmitting any such information to such a person.
If a person other than an employee or agent of the government body is to store or process information described in subsection (1), the agreements executed to authorize the storage or processing must include provisions guaranteeing the confidentiality of the information to be stored or processed.
If a person who stores or processes information described in subsection (1), without lawful authority, wilfully or negligently discloses personal information as defined in The Freedom of Information and Protection of Privacy Act, that person is guilty of an offence and is liable on summary conviction,
(a) in the case of an individual, to a fine not exceeding $5000. or to imprisonment for a term of not more than six months, or both; and
(b) in the case of a corporation, to a fine of not more than $25,000.
If a corporation is convicted of an offence under subsection (3), every officer, director, employee or agent of the corporation who authorized, assented to, acquiesced or participated in the commission of the offence is guilty of an offence and is liable to the penalty provided for in clause (3)(a).
A prosecution under subsection (3) may be commenced not later than two years after the day the alleged offence was committed.
The Lieutenant Governor in Council may make regulations
(a) designating boards, commissions, corporations, associations, agencies or other bodies as government agencies or local authorities;
(b) respecting fees to be paid under this Act and providing for circumstances in which fees may be waived in whole or in part;
(c) defining any word or expression used in this Act but not defined in this Act;
(d) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable to carry out the intent of this Act.
The person who is the Provincial Archivist immediately before the coming into force of this Act continues in office as the Archivist of Manitoba until the person ceases to hold that office.
In any proclamation, Act, regulation, order, agreement or other document
(a) a reference to the Provincial Archivist is replaced with a reference to the Archivist of Manitoba; and
(b) a reference to the Provincial Archives or the Archives and Public Records Branch is replaced with a reference to the Archives of Manitoba.
On the coming into force of this Act, the records that were in the custody or under the control of the Provincial Archives or the Archives and Public Records Branch immediately before the coming into force of this Act are deemed to be in the custody or under the control of the Archives of Manitoba on the coming into force of this Act, subject to any terms and conditions in any agreements that were applicable to those records immediately before the coming into force of this Act.
A schedule pertaining to a public record under Part II of The Legislative Library Act that was in force on the day immediately before the coming into force of this Act, is deemed to be a records schedule approved under this Act.
Section 26 of The Amusements Act is amended in the part before clause (a) by striking out "The Legislative Library Act" and substituting "The Archives and Recordkeeping Act".
Clause 6(1)(b) of The Coat of Arms, Emblems and the Manitoba Tartan Act is amended by striking out "provincial archives" and substituting "Archives of Manitoba".
Section 31 of The Provincial Court Amendment and Consequential Amendments Act is repealed.
Subsection 143(2) is amended
(a) in the section heading by striking out "Provincial archives" and substituting "Archives of Manitoba"; and
(b) in the section,
(i) by striking out "Provincial Archivist" wherever it occurs and substituting "Archivist of Manitoba", and
(ii) by striking out "provincial archives" and substituting "archives".
Subsection 15(2) of The Electronic Commerce and Information, Consumer Protection Amendment and Manitoba Evidence Amendment Act is amended
(a) in the section heading, by striking out "Legislative Library Act" and substituting "The Archives and Recordkeeping Act"; and
(b) in the subsection, by striking out "The Legislative Library Act" and substituting "The Archives and Recordkeeping Act".
Section 79 of The Financial Administration Act is amended by striking out "The Legislative Library Act" and substituting "The Archives and Recordkeeping Act".
Clauses 4(j) and 44(1)(v) of The Freedom of Information and Protection of Privacy Act are amended by striking out "Provincial".
Subsection 56(3) of The Heritage Resources Act is amended
(a) in the section heading, by striking out "Provincial Archivist" and substituting "Archivist of Manitoba"; and
(b) in the section, by striking out "provincial archivist" and substituting "Archivist of Manitoba".
The following definitions in section 1 are repealed:
(a) "agency" and "agency of the government";
(b) "chief judge";
(e) "documents committee";
(f) "photographic film";
Sections 2 and 3 are replaced with the following:
The Department of the Legislative Library is continued as the Legislative Library of Manitoba.
A librarian, to be known as the Legislative Librarian, and such employees and other persons as may be required to carry on the business of the library may be appointed as provided in The Civil Service Act.
Section 4 is amended
(a) by striking out "business of the department" and substituting "business of the library"; and
Section 8 is amended
(a) in clause (a) of the English version, by striking out "loan" and substituting "lend"; and
Parts II and III are repealed.
Clause 10(8)(c) of The Planning Act is amended by striking out "Department of the Legislative Library" and substituting "Legislative Library of Manitoba".
C.C.S.M. REFERENCE AND COMING INTO FORCE
This Act may be cited as The Archives and Recordkeeping Act and referred to as chapter A132 of the Continuing Consolidation of the Statutes of Manitoba.
This Act, except sections 34 and 36, comes into force on a day fixed by proclamation.
Section 34 comes into force on the proclamation of The Provincial Court Amendment and Consequential Amendments Act, S.M. 1997, c. 42.
Section 36 comes into force on the later of
(a) the proclamation of section 15 of The Electronic Commerce and Information, Consumer Protection Amendment and Manitoba Evidence Amendment Act, S.M. 2000, c. 32; and
(b) the proclamation of this Act.