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S.M. 2015, c. 2
Bill 6, 4th Session, 40th Legislature
The National Research Centre for Truth and Reconciliation Act
(Assented to June 30, 2015)
WHEREAS all Manitobans are beneficiaries of the treaties with Aboriginal nations and share responsibility for promoting respect for those treaties and for Aboriginal nations, culture, languages, communities and families;
AND WHEREAS Aboriginal people within Canada have been subject to a wide variety of human rights abuses since European contact, including the abuses of the Indian Residential Schools system;
AND WHEREAS one of the primary objectives of the residential schools system was to remove and isolate Aboriginal children from the influence of their homes, families, traditions and culture and to assimilate them into the dominant culture, based on the assumption that Aboriginal culture and spiritual beliefs were inferior and unequal;
AND WHEREAS this policy of assimilation was wrong and caused great harm;
AND WHEREAS the Truth and Reconciliation Commission (the "Commission") was established as part of a response to the residential schools legacy to contribute to truth, healing and reconciliation;
AND WHEREAS the Commission's mandate includes the collection of statements and documents from former students, their families and communities, and other interested participants;
AND WHEREAS the Commission is required to archive all such documents and transcripts or recordings of the statements received in a manner that will ensure their preservation and accessibility to the public, in accordance with access and privacy legislation and any other applicable legislation;
AND WHEREAS the Commission has entered into a Trust Deed with The University of Manitoba to establish a national centre through which the University will receive, hold and archive the Commission's records, including survivor statements and artifacts;
AND WHEREAS the Trust Deed requires the University to use and preserve the Commission's records exclusively for the following purposes:
(a) to ensure preservation of the Commission's archives and other materials relating to residential schools;
(b) to make the records accessible to former students, their families and communities, the general public, researchers and educators, in accordance with access and privacy legislation, and any other applicable legislation;
(c) to promote engagement of the public regarding residential schools and other Aboriginal issues, including through the fostering of understanding and reconciliation;
AND WHEREAS, through the Centre, The University of Manitoba will continue to collect statements and other materials relating to residential schools and other Aboriginal issues;
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
DEFINITIONS
The following definitions apply in this Act.
"Centre" means the national centre established as part of The University of Manitoba in accordance with the terms of a Trust Deed and an Administrative Agreement entered into by the Commission and The University of Manitoba. (« Centre »)
"Centre records" means the records in the custody or under the control of the Centre, but does not include records relating solely to the administration and operation of the Centre. (« documents du Centre » ou « documents détenus par le Centre »)
"Commission" means the Truth and Reconciliation Commission of Canada established in accordance with the Indian Residential Schools Settlement Agreement dated May 8, 2006. (« Commission »)
"director" means the director of the Centre. (« directeur »)
"information" includes personal information and personal health information. (« renseignements »)
"personal health information" means personal health information as defined in The Personal Health Information Act. (« renseignements médicaux personnels »)
"personal information" means personal information as defined in The Freedom of Information and Protection of Privacy Act. (« renseignements personnels »)
"record" means a record as defined in The Freedom of Information and Protection of Privacy Act. (« document »)
PURPOSE AND MANDATE
The purpose of this Act is to set out the access and privacy laws that apply to Centre records.
For the purpose of this Act, the mandate of the Centre is
(a) to preserve the Commission's archives and other materials relating to residential schools;
(b) to acquire and preserve additional records that document the relationship between indigenous and non-indigenous peoples in Canada and the barriers to, and efforts made to achieve, meaningful reconciliation;
(c) to make the Centre records accessible to former students, their families and communities, the general public, researchers and educators, in accordance with access and privacy legislation and any other applicable legislation; and
(d) to promote the engagement of the public regarding residential schools and other Aboriginal issues, including through fostering understanding and reconciliation.
ACCESS AND PRIVACY LAWS APPLY TO CENTRE RECORDS
FIPPA and PHIA apply to Centre records
The Freedom of Information and Protection of Privacy Act and The Personal Health Information Act apply to all Centre records, except as otherwise provided in this Act.
Centre records not excluded from FIPPA
For certainty, Centre records are not exempt from The Freedom of Information and Protection of Privacy Act under clause 4(j) (archival records) of that Act.
AUTHORITY TO COLLECT AND USE RECORDS AND INFORMATION
General authority to collect and use records and information
For the purposes of fulfilling its mandate, the Centre is authorized
(a) to collect records and information from any source and in any manner; and
(b) to use Centre records.
Agreements re further collection of records
In addition to the archives of the Commission received by the Centre, the director may enter into written agreements with other persons, governments and entities, including the Government of Canada and its departments and agencies, respecting the collection of records and information from them.
An agreement may include a commitment to restrict the disclosure of records or information contained in the records.
Limit re records from parties to the Settlement Agreement
However, an agreement may not include a commitment to restrict the disclosure of records or information that the Centre receives from the Commission or from a party to the Indian Residential Schools Settlement Agreement that is relevant to the experience of residential schools, or the impacts or consequences of residential schools.
Records from Government of Canada
In the absence of an agreement under subsection (1), the Centre may receive records from the Government of Canada and its departments and agencies that are relevant to the mandate of the Centre.
PROACTIVE DISCLOSURE OF CENTRE RECORDS
Proactive disclosure of records
To fulfill the mandate of the Centre as it relates to ensuring availability of the Centre records, the director is authorized to make Centre records available and to disclose any personal information, including personal health information, contained in the records, to the extent that the director considers it necessary to fulfill the mandate.
Interaction with FIPPA and PHIA
For certainty, subsection (1) authorizes the disclosure of personal information under clause 44(1)(e) of The Freedom of Information and Protection of Privacy Act and personal health information under clause 22(2)(o) of The Personal Health Information Act.
Disclosure only if consistent with restrictions
The disclosure of a record or information under this section must be consistent with any commitment made in an agreement under subsection 6(2) and the restrictions referred to in section 8.
Restrictions on proactive disclosure
The director must restrict the disclosure of records and information under subsection 7(1) if
(a) the disclosure would be an unreasonable invasion of an individual's privacy; or
(b) a court order prohibits disclosure.
Director to consider circumstances
In determining whether a disclosure would be an unreasonable invasion of an individual's privacy under clause (1)(a), the director must consider all of the relevant circumstances, including whether the public interest in the disclosure clearly outweighs any invasion of privacy that could result from the disclosure.
The director may establish classes of Centre records and the information contained in them and, for the purposes of this section, specify restrictions that apply to each class.
Types of restrictions on proactive disclosure
A restriction under this section may do all or any of the following:
(a) restrict or prohibit disclosure for some or all purposes;
(b) restrict or prohibit disclosure for a certain period of time;
(c) restrict who may have access to a Centre record.
When disclosure of information in a Centre record is restricted under subsection 6(2) or section 8, but the restricted information can reasonably be severed from the record, the director may sever the restricted information and disclose the remainder of the record.
Complaints re proactive disclosure
The Centre must establish a procedure for receiving and dealing with complaints about the disclosure of Centre records under sections 7 and 8.
RIGHT OF ACCESS BY INDIVIDUAL WHO PROVIDED INFORMATION
Purpose of this section — additional right of access
The purpose of this section is to allow an individual who has provided a record to the Commission or the Centre access to the record without having to make a formal access request under Part 2 of The Freedom of Information and Protection of Privacy Act or Part 2 of The Personal Health Information Act.
Access right of individual who provided information
An individual has the right, on request and without charge, to examine and receive a copy of a Centre record or information contained in a record if
(a) he or she provided the record or information to the Commission or the Centre; or
(b) the record or information is a transcript or recording of a statement or other information provided by the individual to the Commission or the Centre.
Person authorized to act for individual
The individual may authorize any person to exercise the right under subsection (1) on his or her behalf.
A family member of the individual has the right, on request and without charge, to examine and receive a copy of a record or information referred to in clause (2)(a) or (b) if
(a) the individual consents; or
(b) the individual is deceased and the director believes that disclosing the record or information to the family member would not unreasonably invade the privacy of the deceased individual or another individual referred to in the record.
The director must comply promptly with a request under this section.
Director must take precautions
The director must not permit records to be examined or copied under this section without being satisfied as to the identity of the person making the request and, if applicable, the authorization or consent of the individual who provided the record or information.
A restriction imposed under section 8 does not affect a request under this section.
ACCESS REQUEST UNDER FIPPA
When a request for access to a Centre record is made under Part 2 of The Freedom of Information and Protection of Privacy Act,
(a) the exceptions set out in sections 17, 18, 24, 25 and subsection 27(1) of that Act apply;
(b) the exceptions set out in sections 19 to 23, subsection 27(2) and sections 28 to 31 do not apply; and
(c) the director must not disclose the record or information contained in the record if
(i) a commitment has been made not to disclose it in an agreement under subsection 6(2), or
(ii) a court order prohibits disclosure.
Extended privacy protection for deceased individuals
In applying clause 17(4)(h) of The Freedom of Information and Protection of Privacy Act to a request for access to a Centre record, the clause must be read as referring to an individual who has been dead for more than 20 years rather than 10 years.
Restrictions on proactive disclosure do not apply
For certainty, a restriction imposed under section 8 does not affect a right of access under Part 2 of The Freedom of Information and Protection of Privacy Act or Part 2 of The Personal Health Information Act.
DISCLOSURE FOR RESEARCH PURPOSES
FIPPA governs research requests
Section 47 (disclosure for research purposes) of The Freedom of Information and Protection of Privacy Act applies to all Centre records. Sections 24 and 24.1 (disclosure for health research) of The Personal Health Information Act do not apply.
GENERAL PROVISIONS
No limit on powers of Ombudsman or Adjudicator
Nothing in this Act limits the powers and duties of the Ombudsman or the Information and Privacy Adjudicator under The Freedom of Information and Protection of Privacy Act or The Personal Health Information Act.
This Act may be referred to as chapter N20 of The Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.