STANDING COMMITTEE ON INDUSTRY

COMITÉ PERMANENT DE L'INDUSTRIE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 18, 1999

• 0911

[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): I call this meeting to order, pursuant to an order of reference of the House dated Tuesday, November 3, 1998, in consideration of Bill C-54, an act to support and promote electronic commerce by protecting personal information that is collected, used, or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions, and by amending the Canada Evidence Act, the Statutory Instruments Act, and the Statute Revision Act.

I'm very pleased that we have four witnesses with us today. Before we begin with the witnesses, if you note on the agenda, I had marked as item B the consideration of the Canada small business financing regulations, pursuant to the Canada Small Business Financing Act. The consideration of the draft report was just a report to send the regulations back to the House. We've contacted all of our witnesses and none of our witnesses have any problems with the regulations as they're drafted, in terms of the concerns they raised, and none of them wish to appear.

Presently, we don't have a quorum to pass that motion, and we don't have to report them back. However, if we do have a quorum at one point to do that, we can. It doesn't have to be done, but I want to make sure everyone knows that none of the witnesses wish to appear. The clerk has contacted them all and I've talked to several as well.

Madame Lalonde.

[Translation]

Ms. Francine Lalonde (Mercier, BQ): In December, Ms. Finestone asked for a comparison between the European Community directives, the Quebec legislation, Bill C-54 and any other relevant pieces of legislation. Is this document ready and, if so, could we get a copy of it?

[English]

The Chair: Has it been completed?

Mr. John Craig (Committee Researcher): Yes.

The Chair: Has it been distributed yet to the members?

Mr. John Craig: It was sent out at the end of last week.

The Chair: Can you check on that? I haven't seen it.

Mr. John Craig: It was a comparative chart of Bill C-54 and the Quebec legislation. That's what the request was for.

Ms. Francine Lalonde: Bill C-54.

[Translation]

Does it also discuss the European directive?

Mr. John Craig: No, it involved only Bill C-54 and the Quebec legislation.

Ms. Francine Lalonde: In that case, I would like to make another request regarding the European directive. Mr. Flaherty had done a study of this type for the European directive and we could perhaps simply have that distributed.

[English]

The Chair: Can we do that?

Mr. John Craig: Yes.

The Chair: I'm very pleased to welcome our witnesses here today. We have four witnesses, and you should have in front of you four different briefs. Some of them are very lengthy.

Our witnesses all know that we're going to allow them to speak for about five minutes each and that's it. Then we're going to go to questions. We all have lengthy briefs in front of us, but we also have many questions.

We're very pleased to have, from the Institut d'histoire de l'Amérique française, Madame Joanne Burgess, the president; from the Canadian Historical Association and the University of Ottawa, Chad Gaffield; from the Association des archivistes du Québec, Danielle Lacasse, the president; and from the Association of Canadian Archivists, Terry Cook, who is a member of that association.

• 0915

I'm very pleased that the four of you are here. I'll begin in the order in which we read the names, so we'll start with Madame Burgess.

[Translation]

Ms. Joanne Burgess (President, Institut d'histoire de l'Amérique française): Thank you, Madam Chair. Thank you, ladies and gentlemen. I am pleased to be here to speak to you on behalf of Quebec's historical community. With your permission, three of the associations you have invited this morning will be making a joint presentation. I'm referring to the Institut d'histoire de l'Amérique française (historical institute of French-speaking America), the main professional association of historians of Quebec, of which I am the President; the Canadian Historical Association, a Canada-wide association of historians and history professionals, represented by Mr. Chad Gaffield; and the Association of Canadian Archivists, the Canada-wide association of archivists represented by Mr. Terry Cook.

While our respective briefs do present different arguments and focus more specifically on certain issues, there is some common ground, and that is what we would like to highlight. With your permission, I will begin our brief presentation.

As Canadian citizens, the members of our respective associations are pleased that a federal bill on privacy has been introduced at this time when electronic commerce and international trade are expanding. As historians and archivists with a long tradition in handling personal information and the ethical issues it raises, our members are aware of the importance of protecting personal information.

However, their experience with access to information and privacy legislation has taught them that privacy considerations may cause unexpected, perverse effects on the preservation of our archival heritage, on access to the past and on the practice of history. That is why the historians and archivists who belong to these associations call for a reconciliation of the right to privacy and other basic human rights, including freedom of expression and the right to information. That is why they affirm the social value of personal information and their value for our collective memory. That is why they stress very broad diversity of personal information and its sensitivity. Finally, that is why they are calling for a regulatory framework with enough flexibility so as not to hamper the development of knowledge and historical culture.

In light of these considerations, Bill C-54 seems to favour this balance between the right to privacy and access to the past. In our briefs, we express our general support for the approach adopted in the bill. However, we think it could still be improved and clarified in some places. That is why my two colleagues and I will be making a number of recommendations and requesting certain amendments. I would like to start by making two recommendations regarding the application of the bill.

The first concerns the effects of Bill C-54 on archival institutions and private archival groups. First, we would like paragraph 4(2)(a) of the bill to be amended. It excludes from the application of the bill the federal institutions that are already subject to the Privacy Act. As we understand it, this provision would mean that the Act would not apply to the private archival groups kept at the National Archives of Canada, the National Library of Canada and in the five major national museums. We would ask that the wording of this clause be amended to make this exemption explicit.

We are also concerned about the impact of the bill on archival institutions that do not come under federal jurisdiction. We would ask that paragraph 4(2)(c) be amended to explicitly exempt organizations operating solely within archival missions.

The second group of recommendations concerns the impact of Bill C-54 on scholarly research.

• 0920

Paragraphs 7(2)(c) and 7(3)(f) allow for the use and disclosure of personal information for purposes of scholarly research. We would like to see this acknowledgement of scientific freedom of expression stated explicitly in other clauses of the bill. That is why we are asking for an amendment to paragraphs 7(2)(c) and 7(1)(c) to provide an explicit exemption to organizations with respect to the information they gather, use or disclose for the purpose of scholarly research, and for no other purpose.

I will turn the floor over to Mr. Chad Gaffield.

[English]

The Chair: Mr. Gaffield.

Mr. Chad Gaffield (Council Member, Canadian Historical Association): Thank you very much.

As you mentioned earlier, I'm a professor of history. One of the things we hear a lot about these days in the newspapers and so on is how we don't know our history. We are criticized for this in Canada a great deal. One of the focuses of the fact that we don't know our history, we don't know who our prime ministers were and so on.... I think it has sometimes been forgotten that historians nowadays are not simply interested in famous figures and major events, but also in social, economic, and demographic trends, what we now call social history or the history of the anonymous. We feel, among other things, that a knowledge of the past in this way helps us in the development of public policy, in the development of all sorts of ways in which we might reorganize our societies and spread out across the world.

So one of the thrusts of the comments you're hearing this morning is the extent to which in this bill we must not in a sense work against ourselves by working against our sense of our ability to analyse ourselves. There are two recommendations we'd like to make that touch on this.

The first has to do with what we do with personal information that is collected for administrative or operational purposes. One of the fears we all have, of course, is that people will give information about themselves, personal documents and so on, for one purpose and then later it will be used for another purpose, in a sense against themselves. Our view is that we have to be careful with this, and certainly we don't want to misuse personal information. But we feel that using such information, once it's in archives, using it for research, using it in a sense to understand our society, is in fact compatible and consistent with the original purpose for which it was collected.

So our specific recommendation then.... I draw your attention to clause 4.5.3 of schedule 1. We would ask that that be amended with the following sentence:

The use and disclosure of personal information for historical, statistical, or scholarly purposes is not deemed to be incompatible with the purpose for which it was collected.

In other words, our view is that studying that kind of personal information for the purposes I suggested is in fact totally consistent with the reasons why it was collected in the first place. We'd like that clarification.

The second has to do more specifically with the historical approach and it refers back to my other comments. This has to do with what happens to this kind of information after long periods of time. Our view is that in the bill we'd ask that specific mention be made of the fact that once information is basically historical in the sense that it's perhaps 110 years after the birth of the individual, 20 years after the death of the individual, and/or perhaps we could say 92 years after, 100 years after—I think we can easily arrive at the right number, but we must set a timeframe after which we say that for purposes of understanding and knowing ourselves, this information will become available.

My second recommendation therefore in terms of our common presentation here is to direct our attention to paragraph 7(3)(h). We would ask that this be amended and that the time limits be specified in the ways I've suggested—110 years after birth, 20 years after death, and either 92 years or 100 years after the document's date, whichever is shortest.

• 0925

I'd like to conclude by saying that what we're looking for here is a balance. We'd like to contribute to a better bill by suggesting that we want to be careful and not in an unintentional way work against Canadians getting a better sense of themselves in their own history.

Thank you.

The Chair: Thanks very much, Mr. Gaffield.

Professor Cook.

Mr. Terry Cook (Member, Association of Canadian Archivists): Good morning. Honourable members, I thank you on behalf of the Association of Canadian Archivists for considering our written brief on Bill C-54 and for inviting the association to appear here today.

As mentioned, I'm making a presentation in concert with my two colleagues who have just spoken in order to focus your attention in the limited time on the archival and historical implications of this important proposed legislation. On behalf of the English-speaking archival community in Canada, I endorse the comments they have made and I hope the necessary amendments they have mentioned can be made.

My role this morning is to address the second part of Bill C-54, the electronic documents portion.

Honourable members, I want to bring to your attention the words of a former national archivist back in 1924 that are carved on the base of his statue, which sits behind the National Archives Building down the street:

Of all national assets, archives are the most precious: they are the gift of one generation to another, and the extent of our care of them marks the extent of our civilization.

Yet that gift in the computer age is profoundly threatened as never before. Why? Because electronic documents, unlike paper, can vanish by the stroke of a delete key, or by a few generations of software changes in as little as 10 years, or by contamination of highly fragile physical storage media, or, of special concern this morning, by being rendered utterly unreadable through encryption. For these reasons, the Association of Canadian Archivists, together with the Canadian Historical Association and l'Institut d'histoire de l'Amérique française, is delighted by the inclusion of the second part of Bill C-54 on electronic documents.

This bill properly underlines the growing primacy of electronic records as the recording medium of choice, and of necessity, in government and business for many of their transactions. The heightened focus in Bill C-54 on electronic records will offer considerable leverage to the archival work and that of our records management colleagues in promoting the proper management and preservation of computer-generated records.

We particularly support the emphasis of the bill on ensuring that there is sufficient identifying information to establish the reliability of electronic records as evidence for commercial and legal purposes, and thereafter, later on, for archival and historical ones as well. We also strongly applaud the inclusion of retention and disposal provisions for electronic documents.

But we have one major concern with the electronic documents portion of the bill and we urge you to consider amending it appropriately. I know this will sound a little alarmist, but we do believe that the issue of secure signatures and the related encryption has the potential of making the current Y2K millennium bug look small by comparison. Once again, there is the possibility of computer programmers, exactly as in the year 2000 oversight, building new systems for electronic commerce today that will fail or cost billions of dollars to fix tomorrow.

If electronic documents, for very legitimate reasons, adopt these encryption and security conventions needed to generate the secure signatures, there must be a firm commitment made, significant resources provided, and centralized government control exercised to allow for the migration of a stable electronic document and its encryption-secure signature protocols from one software and hardware environment in which they are created to new ones some time in the distant future. And there must be the provision to remove these encryption protocols entirely before transfer to an archives if the documents in question are appraised as having archival value to our society.

• 0930

There will be severe economic and legal chaos if in 15 or 20 years, let alone 100 years, these documents, several software generations along from now, cannot be used for ongoing, long-term commercial purposes and cannot be decoded to serve as required and reliable evidence in courts of law, let alone later on in the court of history.

Given the depth and complexity of the encryption necessary for secure signatures, there will be no retrospective recovery unless it is planned for and budgeted for at the time it is implemented, meaning now. We strongly recommend therefore that there be an obligation imposed by this legislation on creators of such documents to un-encrypt them before they're transferred to an archives.

Let me conclude on behalf of the three of us here by thanking you for having us, as we try with you to make an important and necessary piece of legislation more effective. We are very pleased by the enabling provisions in the legislation respecting the conservation of personal information in archival institutions and for research purposes. We hope that through amendments our recommendations may be implemented to better balance the legitimate needs for protection of personal privacy and the international developments in electronic commerce with the equally legitimate needs for citizens to have ready access to non-sensitive personal information for all kinds of purposes, including archival and historical ones.

We would also respectfully request that our associations be contacted to review any regulations being drafted for the new legislation relating to use and disclosure for research and scholarly purposes, or for designation of eligible archival institutions, or for electronic documents encryption provisions.

Thank you very much.

The Chair: Thank you very much, Mr. Cook.

[Translation]

Ms. Lacasse, please.

Ms. Danielle Lacasse (President, Association des archivistes du Québec (Quebec Association of Archivists)): Good morning, Madam Chair and members of the committee. As the President of our association, I'm very pleased to present the main points we make in our brief in response to Bill C-54.

I would like to start by thanking committee members for kindly hearing our presentation. We are pleased to play a role in the development of a bill we consider fundamental to the development of our democratic society.

I do have two colleagues with me today, and their participation in our presentation has been invaluable. I would like to introduce James Lambert, the Chair of our Legislative Affairs Committee and the author of our brief, and Marc Barrette, who is a member of our Legislative Affairs Committee and who recently took part in all the association's initiatives regarding privacy. The three of us will be pleased to answer your questions.

In March 1998, our association commented on the consultation paper entitled Protecting personal information for an information economy and society in Canada in our first brief called "The Social Value of Personal Information".

The association is pleased to see that Parliament has adopted most of the recommendations we made in that brief in Bill C-54, by taking into account the social and cultural value of personal information. Although we welcome most of the provisions of Bill C-54, it does contain some points we still find problematical, particularly as regards building memory. As a result, we would like to take this opportunity this morning to draw your attention to some points that deserve clarification, and perhaps amendment.

First of all, the association would like to congratulate Parliament for taking into account people's basic right to privacy. However, we fear that presenting privacy considerations in the private sector in a context too closely confined to the issues of electronic trade and information might limit the public's view of its scope, and thus undermine its application to other areas of the private sector and to other types of documents.

Consequently, our association recommends that Part 1 of Bill C-54 be made into a separate bill on privacy throughout the private sector, regardless of the medium involved.

• 0935

The members of our association are intermediaries, and actually mediators in some respects, between the creators of documents on the one hand and the users on the other. While we recognize that our members must ensure that personal information is protected, we affirm that we also have a social duty to possibly make accessible those pieces of personal information that have some value for the community. In this context, archivists must constantly promote a fair balance between an individual's right to forget and the community's right to build its collective memory. In this respect, our viewpoint is different from that put forward by Ms. Burgess a few moments ago. The Quebec Association of Archivists believes that Bill C-54 reflects this effort to achieve this balance and would like to congratulate Parliament on that.

However, we think the bill could be amended to strengthen this fundamental balance. As a result, our association thinks that some provisions designed to protect personal information, particularly those in Schedule 1 of the bill, are still inadequate. Clauses 4.2.3 and 4.3.6 and paragraph 4.3.7(b) of Schedule 1 should be reviewed to highlight the requirement to get clear, informed consent from the individual concerned whenever personal information is collected, used or disclosed. Similarly, the bill would be more in keeping with the original intent of Parliament, that is to protect privacy, if paragraph 4.3.7(b) were also revised to better define what is meant by sensitive information.

In addition, to avoid potential abuse in the use and disclosure of personal information that is no longer required to fulfill the identified purposes, and that has no historical archival value, our association recommends that clause 4.5.3 be reviewed to make the destruction of personal information for safety reasons obligatory rather than optional.

On the other hand, our association thinks that some changes are also required to further facilitate the disclosure of personal information. To this end, we recommend a clearer definition of "personal information" as contained in clause 2 of the bill, so as to take into account various possible documentary situations. Given that the personal information contained in computer files or unstructured manual files in accordance with naming criteria are naturally protected from systematic, voluntary fraud, our association recommends that they be excluded from the coverage of the bill once the purpose for which they were collected has been achieved.

In addition, our association thinks that private archival holdings given to the National Archives of Canada for archival or historic purposes must enjoy the same protection as federal government archives. In order to avoid any ambiguity in this regard, our association recommends that the National Archives of Canada be explicitly subject to Bill C-54. At the moment, it is difficult to tell what the drafters' original intentions are, and this creates a significant legal vacuum.

However, the inclusion of the National Archives of Canada or other federal institutions that also have a mandate to collect private archival groups, including the National Museums and the National Library, in the application of this bill should not unduly limit the accessibility of personal information. Consequently, our association recommends that the disclosure of personal information from the private sector be managed with the same flexibility accorded in the case of public sector documents under subsection 8(3) of the Privacy Act, with the exception of the protection period specified in the Regulations, which should be extended to 100 years after the creation of the document—on this, we agree with the Institut d'histoire—or to 20 years after the death of the individual.

In order to facilitate access to personal information for research purposes, our association recommends that Parliament define the adjective "scholarly" as used in paragraphs 7(2)(c) and 7(3)(f) so as not to limit the use of personal information to academics only. This would exclude popular study and research, such as genealogical publications, popular history books or historical studies done by amateur historians.

• 0940

Our association would like to congratulate Parliament for including in the bill a provision exempting from the prohibition on receiving personal information without the individual's knowledge those organizations whose duties include the conservation of documents of archival importance.

Our association applauds the decision to designate by Order in Council those organizations that will be able to take advantage of this exemption. However, we must ensure that these organizations have a genuine interest in conserving documents of archival importance, and that their basic interest is not commercial in nature.

In this respect, the association would like the government to establish formal criteria to be met by any organization that requests a written designation and would like these criteria to include standards for the storage, handling and disclosure of personal information that is protected by the law.

Further, the association recommends that in establishing eligibility criteria for designations, the government consult organizations that have experience in personal information protection, such as the Association des archivistes du Québec.

Finally, to conclude, the Association des archivistes du Québec would like to warn legislators about the importance of doing a periodical review every five years, of the application of Bill C-54. We believe that a single review after five years, as currently provided by the Act, is not enough.

Protection of personal information is generally evolving at a fast pace, in Canada as well as elsewhere in the world. In the private sector, this matter is still at the trial stage. Societal attitudes are changing quickly; information technology that allows massive use of personal information is evolving even more quickly. Basically, a single and final review cannot take the rapid progress in this field into account.

Thank you for your attention.

[English]

The Chair: Thank you very much.

I want to thank you all for your opening comments. We're going to turn to questions.

[Translation]

Ms. Lalonde, please.

Ms. Francine Lalonde: First, I would like to make a brief comment. Since we began hearing witnesses, we've mainly heard experts or consumers who are specifically interested in protecting private information. This is the first time we are hearing archivists, who are somewhere between the two, as well as representatives of historians, who are interested in historical memory conservation. Let me mention that the only thing I studied in university was history and that is the only degree I have. So I can sympathize with your point of view.

Further, I am also a member of Parliament from Quebec, which was the first jurisdiction in North America to pass an Act to protect personal information in the private sector. Quebec has been praised for this Act, and it directly relates to the requests found in the European guidelines.

I know, and your briefs bear witness to this fact—especially the brief from the Institut d'histoire, which would probably have Canon Groulx turning over in his grave—that you had problems defending what you call the right to historical memory, not because of Quebec laws but because of the civil code. At least that is what I was told. I think that if it were not for the Civil Code, the problems related to the Quebec laws could be quickly solved.

This comment was meant to show that first and foremost, you believe that the balance we are seeking is not suitable for Quebec. Let me tell you that as far as private information is concerned, I will continue defending the Quebec law. We're not dealing with the constitutional aspect, because you know that the Quebec government requested to opt out, as well as all justice ministers, in fact.

The specific mandate we are expecting of you concerns protecting historical memory and archival documents. And that is what I will focus on.

I'll start with you, Mr. Cook, because you mentioned all those who have an interest in electronic commerce—including those working in electronic commerce in Quebec as well as anywhere else—when you said that we are basically going through a revolutionary period. In fact, since knowledge is being transmitted in non-verbal ways, this is the first time that we have gone from a paper medium to another type of medium that is even more fragile than paper. Paper can be burnt, it can get wet, or be affected by moisture and mould. But now, at one and the same time, we are facing a whole array of serious and permanent risks.

• 0945

I am very interested in this and I would like you to tell us more about what was done. I imagine that research was carried out. The whole European Community is aligned on what was done in Quebec. I imagine that European historians, who hold their own in this field, to say the least have similar concerns.

[English]

Mr. Terry Cook: Thank you for your question. I think it's safe to say that electronic records is considered the most difficult and challenging issue facing archivists around the world. There are large research projects at universities in North America attempting to define the issues and then develop solutions for them.

I suppose it could be stated by a couple of hard examples. I will pick on WordPerfect Corporation because I have WordPerfect myself. Within a period of 10 years, WordPerfect 4.2 could not be read by WordPerfect 8 in terms of macros and some of the larger functions. That's the same software word processing, which is the simplest application one could imagine, by the same company.

What happens when it's not a universal software but a piece of software built by a government department or a business with their own computer scientists? Only they have the codes. If those are not made apparent, if they are not migrated to an archives, there is no hope of reading that information. So, in effect, we will be losing our past.

The challenge to archives, I think, and therefore to historians who will use archives is twofold. One is to make sure this electronic information actually has a context, that it means something. What did context mean in the old days? In the old days if you had a piece of paper, you had letterhead, you had a date, you had a signature, you had an envelope, and you had a file number.

[Translation]

Ms. Francine Lalonde: On paper.

Mr. Terry Cook: Exactly.

[English]

That's not there in electronic information. It's there, but it's scattered in several parts of the computer systems. When you send an e-mail, your text is here, but the addressing information comes from somewhere else. You have an address list. If those aren't stitched together as one whole and each one is controlled by different pieces of software, then what will come to be used by an archives—and not just an archives but by a government wanting to, say, provide compensation for Japanese Canadians or to do research into aboriginal abuse in schools.... When those records are electronic and you want to find them 20, 30, 40 years from now, they won't make sense unless the software has been carefully migrated so that context sits together. So the first thing is to actually provide context to turn data into records, as we in archives like to say. The second major issue is migrating this over time.

What Bill C-54 adds is a third dimension. Not only do you have to turn data into information into records and migrate it over time, but also it's all encrypted so that if you don't un-encrypt it so that it is readable, it will never be read.

I don't think I'm here just to argue, on behalf of archives, won't it be nice for our history and heritage. I'm here to argue on behalf of Canadian society for electronic commerce and business itself, for government accountability, as well as for archives in history.

[Translation]

Ms. Francine Lalonde: I said that issue is of concern to everyone for whom history is important, but I also said that the Europeans are working hard on privacy issues and the development of so-called electronic commerce, which in fact is a bit of a misnomer, since we're really dealing with electronic exchanges or transactions, some of which are not commercial in nature. They probably also look at these issues. As did no doubt all the scientific, historical and archival communities. Things are moving so fast that no one can keep up. You mentioned Word software. I typed out some really good papers on Commodore 64, but I can't read anything on it anymore, despite the fact that I wrote potentially important historical texts on it.

• 0950

Some Hon. Members: Oh, oh!

[English]

Mr. Terry Cook: I have an Apple II Plus, which is almost one back.

Perhaps I could draw an example from the European experience, since you brought it up. The Swedish Ministry of Transport and Communications, in picking up the European Union initiatives in this area, has recommended, as we do, that there be centralized control of this and that their National Testing and Research Institute, which I think would be the equivalent of our National Research Council and standards boards, together with the National Archives of Sweden, develop the standards that will be necessary for secure signatures and encrypted documents, rather than, as this bill does, enabling each government department to set up their own regime. That will be chaos.

The Chair: Thank you.

Mr. Shepherd.

[Translation]

Ms. Francine Lalonde: It might be interesting to find out about that. Did you hear what I said, sir?

An Hon. Member: Yes.

Ms. Francine Lalonde: It might be interesting to get more information about Sweden.

[English]

The Chair: Thank you, Madame Lalonde.

Mr. Shepherd, please.

Mr. Alex Shepherd (Durham, Lib.): Thank you very much for appearing today. I think it may be a thought process that hasn't been on our minds to date. Certainly, we are who we have been, and I appreciate your need for getting access to information.

First of all, I'd like to deal with the aspect of disclosure and how you use and reuse information. It has been pounded into our heads by various witnesses about the need for consent. I know the problems you're having with the census and so forth as to what people consent to when they sign those documents. I wonder if maybe our recommendations should be more focused on the issue of consent, the person simply consenting to the reuse of their information, but possibly limiting it. Maybe there are different levels of consent. People will consent to the use of their information for historical or scholarly purposes, as opposed to purely commercial consent.

Your recommendation talks about statistical.... That's a pretty wide open area. I know a lot of privacy groups are going to say that's too much latitude. I'm trying to find a balance that would work. I don't know how we should deal with that.

[Translation]

The Chair: Ms. Burgess.

Ms. Joanne Burgess: If you don't mind, I'll answer in English.

[English]

The recommendation you're referring to is in my association's brief. The issue is what is secondary use of data and what types of secondary use of data are legitimate or not. Part of the problem is that over the centuries all of the work we do is based on material that was gathered for other purposes, such as correspondence and a wide range of types of records that have survived over time. By virtue of time passing, the sensitivity to the creators has lessened, and they enter the field of historical knowledge. The principle we want to have recognized is that secondary use for historical or other purposes, whether it's 10, 15, 20, 30, 40, 100, or 150 years later, is not the same thing as secondary use for other administrative or commercial purposes.

You talk about an explicit consent for future historical use. In many cases it's difficult to imagine now what in 50 or 100 years historians might consider as material they would want to analyse and use. In some ways it's serendipitous. But—

Mr. Alex Shepherd: What privacy groups are saying is either consent or don't consent. I don't consent. Therefore, there is no record of my information. So that leaves you out in the cold, does it not?

Ms. Joanne Burgess: Basically, if good privacy management is to destroy records once the purpose has been attained, what you're saying is that we're destroying almost all records of our current society so that in the future you won't be able to access them.

• 0955

It seems to me what some of the provisions in Bill C-54 are saying is that within those sectoral codes of practice, businesses are deciding what records are more or less sensitive and how they're going to manage that information. Some records are then being handed over to corporate archives, whether it's Canadian Pacific Railway or Air Canada or whatever, and the company is basically going to be determining what material is going to be subjected to the 100 years or 110 years, or whatever is the maximum, and what material will be made accessible for certain purposes, subject to confidentiality, and what material might be made available with permission to divulge.

For example, if I go as a researcher to the Bank of Montreal or other corporate institutions who already have corporate archives, they're going to tell me, these records are closed for 100 years or 75 years or whatever, and these records are open and you can look at them provided you maintain confidentiality; these other records we consider to be of lesser sensitivity, and as a working historian, if you tell us what your purpose is, if you show your bona fides, your legitimacy as a historical researcher, you're going to be allowed to use these records, the same way someone like Pierre Berton could get access to the CPR records and write about the past of Canadian enterprise.

So to a certain extent there is that negotiation of what is more sensitive, what is less, who is the person, what is the purpose, and for how long. And you've got to somehow try to balance all of those things. If you have an absolute yes consent, then it can be saved, or if it's a no consent, then it's destroyed. Then you're in this Orwellian sort of world.

Mr. Alex Shepherd: Let me just clarify it. I think you are addressing an issue where the information is already available and has been stored, and I guess I'm talking about where the rubber hits the pavement; that is to say, where people just simply don't want to consent. So it would seem to me a better argument in your case, if you're interested in the gamut of the historical records, that people would generally consent for historical purposes but not consent for other purposes. Wouldn't that make more sense?

Ms. Joanne Burgess: It seems to me the records that exist now are records to which there was no explicit consent given that they be saved for long periods of time. They survived by virtue of chance in some cases, or corporate records policies.

Mr. Alex Shepherd: Yes, you're talking about after the fact, as opposed to some of the things that people are trying to address in this legislation.

Mr. Chad Gaffield: You're interested in the right now, the person who's going to be right now creating documents.

[Translation]

Ms. Danielle Lacasse: In our brief, we tried to define the notion of consent. If you don't mind, I'd like to give the floor to the author of the brief, Mr. James Lambert, who may be in a better position to explain the AAQ's position and address your concerns on that issue. Do I have your permission so do that, Madam Chair?

[English]

The Chair: Sure. Mr. Lambert.

[Translation]

Mr. James Lambert (Legislative Affairs Committee chairman, Association des archivistes du Québec): Thank you. What concerns me in this regard is that data which would be made available would only come from people for whom history is important. Others may deny consent for any number of reasons. In other words, by consenting to make their personal information available for historical purposes, these people would cause the final results to be skewed because of the type of people they are.

[English]

The Chair: Mr. Shepherd.

Mr. Alex Shepherd: I'm still somewhat unclear. Are we talking about people giving their consent directly as opposed to using the legislation to say, where you've obtained certain types of information, we can use that for historical purposes—

[Translation]

Mr. James Lambert: Yes, that's right.

[English]

Mr. Alex Shepherd: —or are you saying when I sign on to this program it says I may have two levels of consent? I don't want to consent for commercial purposes, but I may consent for historical purposes. Is that...?

[Translation]

Mr. James Lambert: Yes, that's right. I'm basically fearful that only people concerned about history would give their consent, and this would skew the statistics.

• 1000

[English]

The Chair: Thank you.

Last question, Mr. Shepherd.

Mr. Alex Shepherd: Well, I could ask more questions....

The Chair: Okay, thank you.

[Translation]

Ms. Lalonde, please.

Ms. Francine Lalonde: Thank you, Mr. Shepherd.

I want to stay with the subject. I read your brief, and I hope you won't mind my saying this, but it reads like it was written by archivists. It is extremely precise and well written. You tried hard to achieve the balance you're talking about.

In recommendation number 6, in which you attempt to define the notion of consent, you agree with those—and there are many—who say that it doesn't make sense that the bill does not call for consent when data is collected. From what I gather, you define "sensitive" information or documents. We know a standard was set following negotiations. It means that we didn't go far enough in protecting privacy considerations.

You say in recommendation number 6:

The organization must obtain written consent in the case of sensitive data. One's physical and mental health, one's political, religious, philosophical or union beliefs are considered sensitive data, as are one's ethnic origin or race, sexual preference, and financial and legal situation...

You say that we should state specifically that a person should give their consent before their data can be made available.

Mr. James Lambert: Written consent.

Ms. Francine Lalonde: Written. As for other types of data, you write:

Verbal consent is sufficient to release non-sensitive data.

I think you're trying to define an area which is still too vague. In light of what I said earlier, I will study this matter closely. Thank you for...

Did you want to add anything to that?

Mr. James Lambert: I just want to say that we didn't invent anything. The list is a compilation of pre-existing lists put together by the Quebec Access to Information Commission and by the European Commission.

Ms. Francine Lalonde: Thank you very much.

Then, in recommendation number 10, you state that paragraph 4.5.3, which is also part of the CSA standard, must be amended to read: "We must destroy, erase or depersonalize...".

I want to draw your attention to the fact that you say: "we must", whereas the standard says: "we should", which doesn't commit anybody. This might reassure Ms. Burgess. Organizations in this case needn't destroy data; some people don't like it, as you can see. However, you say "we must".

It also says: "which are not needed for the purposes stated and which are not of historical or archival value".

It follows that some documents would be identified in this manner. How would one go about declaring that such and such a document has historical or archival value? There's no easy answer to that one, either.

Mr. James Lambert: No, but the task of an archivist is to decide on what is called secondary value or historical value of a document. In other words, I feel relatively big organizations should call upon an archivist—not necessarily hire one, but call upon his services—to assess archives prior to destroying them. It should not be mandatory, but I feel it should be done.

Ms. Francine Lalonde: Does that happen anywhere? I'd like to refer to the European Community once more. It would be interesting to hear how they have dealt with this situation.

• 1005

Ms. Danielle Lacasse: Of course, our association is but a starting point, as is the ACA for English Canada, for consulting with people on which documents to keep for archival purposes. There are many types of archival services across Canada and Quebec, at the municipal, provincial and federal levels. These services work in specific areas to assess whether documents should be preserved for archival or historical purposes.

Mr. James Lambert: As well, there are assessment criteria.

[English]

The Chair: Mr. Lastewka, please.

Mr. Walt Lastewka (St. Catharines, Lib.): Thank you, Madam Chair.

First I would like to thank the witnesses for their presentation today. They bring a very good perspective that needs to be taken into account.

I would be interested to hear from the Quebec archivists group—and maybe it would apply to other areas—on the Quebec Civil Code and the privacy legislation that's in Quebec. Does it have allowances for collecting historical data and some of the things you have brought here today? Is that included in the code?

[Translation]

Mr. James Lambert: I'm glad you asked that question. I'd like to correct something Ms. Lalonde said. The private sector in Quebec is, in fact, having serious problems with the privacy issue, but not because of the Civil Code. As the law currently stands, there is no provision allowing for the preservation of personal information for the future, that is for historical or archival purposes. If the law were followed to the letter, all data would be destroyed. No provision calls for the safeguarding of personal data for historical ends. Even the government of Quebec recognizes this. Bill 451 was to change this, but since it was not passed, we're still stuck with the old Act.

[English]

Ms. Joanne Burgess: If I could add something about the Quebec legislation, there are two problems with the current legislation. It's true it will be amended someday, we hope, but it hasn't been amended yet. For the private sector there is absolutely no provision for communicating personal information. Eternal silence is imposed. There's no provision that says after so many years have passed you can legally make public personal information. At the moment, the way the law is phrased, if something is not destroyed, if it has survived, if it's already in archives, in theory, if you actually write publicly the name of someone to whom something might have happened 150 years ago, you are in fact breaking the law at the moment in Quebec.

If you're dealing with archives in the private sector, archives of entreprise are very broadly defined in Quebec, much broader than the notion of business as it is in this legislation. And that's a separate issue from the Civil Code, because the Civil Code does say you can override the provisions of the Civil Code through legislation. The law can limit the Civil Code, and at the moment that hasn't taken place yet for the business enterprise.

The Chair: Mr. Gaffield.

Mr. Chad Gaffield: It seems to me all these questions focus on the fear we all have that information we give for one reason will end up being used against us. It seems to me that is the heart of the issue. I guess our common message here today is that rather than saying, okay, we have this fear, the only way to solve this is simply to basically destroy everything and forget about it, we're saying, wait a minute, no. We have developed ways in which we can protect people and at the same time allow ourselves to continue studying ourselves, to develop better public policy, to develop a sense of the past, and so on. So we're saying we understand. I personally don't want to give information and then have it used against me. No one wants that. We're saying that there are in fact well-established...and we're working on this all the time. There are no examples that I'm aware of in which information given for one purpose has then been used against the person. Where are the horror stories we see?

• 1010

In Newfoundland, for example, there is census information that's available much more recently than for the rest of Canada because Newfoundland joined later. The 1921 census is on the web site. People can go and look at individuals and so on. Nothing bad has happened out of that. I think there are lots of precedents in terms of confidentiality clauses and so on in which the fear of people can be well understood and protected, and at the same time....

So we can have it both ways. We don't need to simply say, let's destroy it all because we're scared that it might be used against us. No, we understand it could be used against us and we have specific mechanisms—and I think a lot of the proposals today are in this direction—that will allow us in a sense to have it both ways.

[Translation]

Mr. James Lambert: In one of our recommendations, we say, as does the European Commission, which is as concerned with this issue, that the communication of personal information for historical purposes should only be allowed if data collected cannot be used against the person concerned.

[English]

Mr. Walt Lastewka: I think you've—

The Chair: Excuse me, Mr. Lastewka.

Mr. Walt Lastewka: Am I getting close to the end?

The Chair: You are close to the end.

Mr. Walt Lastewka: I'll wait for the next round.

The Chair: Mr. Keyes.

Mr. Stan Keyes (Hamilton West, Lib.): Just on the heels of Mr. Lastewka's question, I don't think it's anyone's intention to try to use information against someone else, although there's an element of our society that would try to do this.

Mr. Gaffield, you claim there are restrictions that can be put into place so that we are archiving and we are saving, but there are restrictions that can be put into place or rules that say, if you do anything else with that particular piece of information, you'll pay the consequences of whatever. The trouble we're learning is that's all right if you're dealing with pen and paper, but with this new electronic age what you're archiving can be learned by a 12-year-old hacker sitting in some small town in Canada. No one knows who got the information, how it was attained, and what it was used for because by the time the 12-year-old takes this information and disseminates it down the pipe.... So it's all well and good to say we could put rules in to prevent that information from being used, but at the same time, who are you going to prosecute? It's a just wide open space out there when it comes to—

Mr. Chad Gaffield: I'll pass you quickly to Terry Cook, but I think the point is that we're not against encryption. All those sorts of protections are great. All we're saying is that there must be special provisions made such that in achieving the end you're suggesting—about which we totally agree; we don't want a 12-year-old hacker getting that information—but at the same time in trying to solve that problem and protecting the information from the hacker out there, we don't want to destroy the record for all eternity. That's the issue. So what we want is provisions that say, sure, we understand encryption, we have all that, but at the same time we want to make sure that in doing this we don't also erase in a sense the record for posterity.

Mr. Stan Keyes: Mr. Cook, you mentioned operating systems. I think you said you have Apple or something, and it was at a certain level and the newest level won't read the old level, etc.

Mr. Terry Cook: Yes.

• 1015

Mr. Stan Keyes: I liken it to the eight-tracks I used to have in my car. You can't find an eight-track player now. You're lucky enough to come across one in a garage sale somewhere. The music has evolved so that you still have the same tunes and the same information, but it's now moved on to cassette, and from cassette to disc, and then from disc to who knows what next.

Isn't it the same with information? I just traded in my old 486 computer for a new Pentium II, and all that information in that computer was loaded up onto the new operating system. Wouldn't it be the same? To fear that the operating system that everything's put on will no longer be read in the future—aren't you taking that information that was stored on the old stuff and moving it up into the new systems each time to ensure that they're saved and they're saved on the latest technology so they can be retrieved on the latest technology?

Mr. Terry Cook: That in a nutshell is a very eloquent statement of what archives have to do around the world.

Unfortunately, it's a little different from music or video. The quip was made, too bad if your wedding photos are in Betamax, because you can't watch it now.

With video and audio, you can move the signal forward from eight-track to cassette, to CD, and so on, and it will play. With computer records, you can move the physical media, but you also need the software to move with it. I could have a word processing text on an eight-inch disc, a five-inch, a three-inch, a CD ROM, but you need the different software over each generation as well.

The task for archives, which are receiving computer records from scores and scores of different software environments, some of which are not commercial, such as Word or WordPerfect.... They're built in-house, major mainframe proprietary software, and making that so it will migrate over time, and then remigrating it every ten to fifteen years, maybe every five to eight years, is a major expense that archives are not now funded for. Of course, it's an exponential curve. As you get more and more in your backlog, there will be a greater number of records that will have to be moved forward, perhaps every eight to ten years.

So you've put your finger exactly on what the problem is, and it certainly can be done. In pilot projects, archives have shown they can do it. The National Archives of Canada has a very good electronic records program, and has it had for 25 years, but on a fairly small scale. As it now spreads across the entire government, let alone society, can it move up from pilot projects and a few experiments to cope with thousands of these coming in each year? The question is moot at present.

Mr. Stan Keyes: Thank you.

The Chair: Thank you very much, Mr. Keyes.

[Translation]

Ms. Lalonde, please.

Ms. Francine Lalonde: In one of your recommendations, Ms. Burgess, you proposed that paragraph 4(2)(c) be amended by adding "for scientific purposes". It would therefore read, "for journalistic, artistic, literary or scientific purposes and for no other purposes". Can you explain why?

Ms. Joanne Burgess: We have looked to the European directive. This paragraph provides an exemption for organizations that collect, use, or disclose personal information for journalistic, artistic and literary purposes and for no other purpose. In our brief, we suggest that it is not obvious that the activities carried out by university researchers, be it in history or in other fields, are exactly similar to literary and artistic creation. It is true that we write, but the scholarly and scientific research understood here as academic research, aim to advance our knowledge. This paragraph and paragraph 7(1)(c) do not explicitly state that organizations carrying out this type of activity are covered by the general exemption for data collection.

We believe it is important to specifically exclude organizations that gather, use and disclose data for scientific research purposes. We could say that this is a nomenclature problem and use the term "scholarly research". The English version uses the expression "scholarly research". We believe that this type of activity should be explicitly covered by this exemption, just like literary or artistic creation, so that a journalist or historian working in the area of scholarly research and who creates files, etc., will not be subject to the same obligations as commercial organizations.

• 1020

We suggest that the issue is recognizing the value of freedom of expression for artistic or literary purposes. We believe that freedom of expression for academic or scholarly purposes is also legitimate.

Ms. Francine Lalonde: I know that you were expecting me to ask you the following question. Recommendation 13 of the brief of the Association des archivistes du Québec proposes that a subclause be added to paragraph 7(2)(d), as follows:

The use is made for the archival assessment and processing (classification, filing and description) of documents with a view to the preservation of documents of historical or archival value.

Ms. Danielle Lacasse: We developed this recommendation in order to facilitate archival work. When archivists assess documents to determine their historical or archival value, they often have to go through kilometres of documents and therefore cannot obviously ask the Commissioner for prior authorization to consult those documents. Basically, this clause recognizes the nature of archival work.

Mr. James Lambert: In other words, it is not the same request.

Ms. Danielle Lacasse: No, it's different.

Mr. James Lambert: Our request is limited to archival work, whereas the representatives of the Institut d'histoire de l'Amérique française are dealing with the issue of disclosure by archivists to researchers.

The Chair: Ms. Burgess.

Ms. Joanne Burgess: Paragraph 7(2)(c) specifically provides for the use of personal information “for statistical, or scholarly study or research, purposes”. Our point does not deal with this paragraph since it already recognizes the possibility of using personal information in a manner that will ensure its confidentiality. However, if memory serves me right, there seems to be an imbalance between the level of recognition of the legitimacy of scholarly research in paragraphs 7(2)(c) and 7(3)(f). Paragraph 7(1), the general paragraph, and paragraph 7(2)(c), do not contain this specific recognition. The purpose therefore is to reinforce what is recognized elsewhere. This does not contradict the amendment proposed by the Association des archivistes du Québec to this same paragraph.

Ms. Francine Lalonde: Thank you. I have the feeling that we're dealing with two different worlds here, and I wonder if my colleagues opposite share this feeling.

There is the world of virtual reality. We have already heard Ms. Steeves tell us about banks created from information that is gleaned by surfing the Internet. We do not know how many such banks already exist, and no one knows how accurate they are. How could history be written on the basis of documents of unproven historical value? To some extent, this will be the future of collecting. This is very far from your idea of recognition, because we could well say: garbage in, garbage out.

On the other hand, there are paper banks that exist already, and you want to ensure that they will not be withdrawn from the writing of history. These are really two different worlds. I would like to know more about this second world. Basically, at the present time we are talking about paper documents and not future documents.

[English]

The Chair: Professor Cook.

Mr. Terry Cook: I think the future of paper is not disappearing. The paperless office has been predicted for a long time and it hasn't come.

• 1025

[Translation]

Ms. Francine Lalonde: I am pleased to hear you say that.

[English]

Mr. Terry Cook: However, we do have some studies that are disturbing. When I worked for an archives until recently, we had two studies in which important groups of records were investigated. In those two senior offices there were rules that “thou shalt print to paper”. The computer is a smart typewriter. Everything important shall be printed to paper and put on file.

When we investigated the computer records and compared them to the paper records, there were fully 30% of senior policy records that were in electronic form that were not in paper form.

So the paper world is still there, but it tends to be copies and duplicates, people printing out things. But there are unique electronic records.

To go back to your first point, though, which I think is exceptionally important, what about all this stuff floating out there? I think we need to make a real distinction between the creator of the electronic record and its communication. In its communication, it is all out there. It's all over the Internet. There are thousands of copies—the 12-year-old hacker who sends it everywhere—but there is a home base, either for a web site or a database, from which that information is extracted and sent elsewhere.

I can give you one example that I'm familiar with. The Indian registration system at the Department of Indian Affairs and Northern Development was started in 1851. It was a handwritten series of ledgers up until the 1960s, at which time they began to put the information into computer form. I think it was in 1963, if my memory serves me correctly. In 1984 they went only electronic. The database that proves you have Indian registration to be entitled to all the aboriginal claims in this country is only in electronic form. So someone 150 years from now who is going through the Indian claims process, as aboriginal people are going through now, must have that record surviving from 1999, or there is no Indian claims process, quite aside from history.

What the archivists do is look not at all these billions of bits of data, but at the functions and activities that create the record, and they say, what is important that's going on here. Let's isolate the databases and protect those. It's not at the delivery-sharing stage, because that is impossible. It's going back to the record's creator and trying to protect the key databases or the key office systems. I don't know if that helps.

The Chair: Mr. Gaffield.

Mr. Chad Gaffield: Very quickly, just to respond to the earlier question about whether there are nightmares of this data all disappearing, we know, for example, that NASA cannot read most of its tapes from the 1960s. That data is gone. The American census of 1960, for example, which was computerized, is no longer readable. There are lots of examples of the theory of the migration and how it's all supposed to work. It doesn't work that way. There is an enormous amount of electronic documentation now that is basically garbage.

[Translation]

Ms. Francine Lalonde: Which has disappeared.

Mr. Chad Gaffield: Yes, it has disappeared. I think that if we start to say that this is not much of a concern, it is quite likely that in 10 or 20 years we will have lost a large part of the present electronic documents.

The Chair: Thank you. Ms. Lalonde.

Ms. Francine Lalonde: So we don't have to be worried about the absurd.

[English]

The Chair: Mr. Murray.

Mr. Ian Murray (Lanark—Carleton, Lib.): Thank you. I had a question for Professor Cook, and I had to step out for a few minutes, so I may have missed part of the discussion.

Professor Cook, you were talking about the problems of encryption and you were suggesting, if you will, a Rosetta stone amendment that would somehow allow access to all this information at some time in the future. I was just struck by what appeared to be the impracticality of this. As Madame Lalonde has pointed out, you have all this stuff floating around out there, and if it's encrypted, you have a hard time knowing what it is you're going after, just because it's encrypted. Then you have the problem of trying to break the code.

Have I misunderstood what you're asking us to do with this? I'm just not clear. As I said, it sounds like a very impractical thing to do.

Mr. Terry Cook: No. It's going to cost some money, that's for sure. But I don't think it's impractical.

If at the time you add any new dimension to an electronic system, such as encryption codes, if you add a rider to that so it will disappear after a period of time—it will self-destruct; it will remove itself—if it's programmed in at the front end, then that makes it practical. If you wait until they're finished with the records and they've sat on the shelves for five years, and someone calls the archives and asks if they are interested in this and the people aren't there, then you're right, encrypting them document by document is absolutely impossible; it will not happen.

• 1030

So that's why we're requesting, following the Swedish model, that the mechanisms being built now between computer scientists and archivists are developed so that government departments and businesses that are governed by this bill...if they're destroying the record at the end of the time of its active use, that's fine, destroy it, but if it has archival value, it has the de-encryption preprogrammed in. But if it's not done up front, it's not going to happen. You're quite right; it is impractical. If that happens—a few of us who talk about electronic records have actually used your metaphor—there is no Rosetta stone for electronic records. If it's gone, it's gone.

Mr. Ian Murray: I guess you're also asking people in business and government to assess the value of a lot of the material they're working with as to whether or not it would be of interest to historians or archivists in the future. I would think that's another whole area you'd need to tackle in terms of education.

Mr. Terry Cook: There are two dimensions to that. One is an area of business and government risk. What is of long-term value to the government? Can the Government of Canada not afford to have information on residential aboriginal schools available 20 or 50 years from now? I would suggest, as a social cost, it cannot have those records unreadable at that time. It is the same for archivists and historians, but that perhaps is secondary.

The second issue is that the whole approach of the archival profession has been revolutionized in the last 5 to 10 years. We can't sit at the back any more and wait until the records are finished and then assess them. We have to be what we call up front, at the front end, working with the creators of records in government and business to make those decisions with them as to what records will have long-term value, and then to build in those recommendations of “keep” versus “destroy” actually into the creating software. If it doesn't happen up front, again, it's not going to happen, or it's going to happen with great difficulty.

Mr. Ian Murray: Because you have exemption in the bill, though, this bill will allow you to be, if you will, proactive. You can help the archivists of tomorrow, today, by mining the information that's out there and trying to figure out what's worth keeping, being aware of what's there today and perhaps flagging somehow that it should be looked at in the future. I would think it changes the nature of your work substantially. Perhaps it's almost like the difference between journalists and historians.

Mr. Terry Cook: You're quite right. Both flagging it to be preserved and flagging it to be un-encrypted are the two.

Mr. Ian Murray: Okay, thanks.

The Chair: Thank you very much.

Mr. Lastewka, do you have a last question?

Mr. Walt Lastewka: I was going further on what Mr. Keyes had said. I noticed in your reports...and we talked earlier about whether it is 92 years, 100 years, or 110 years. Do you have unanimity amongst yourselves about what it should be?

Mr. Terry Cook: No, we don't.

I'll state the position of the Association of Canadian Archivists. We've opted for 92 years, because it is the only precedent in federal legislation for the disclosure of records based on the date of the document.

The privacy regulation has two provisions: 110 years after birth or 20 years after death, and, in the case of the census, 92 years after the census. The logic of that is that the age of majority is 18 years, so 92 plus 18 makes 110 years after birth. Normally you don't fill in a census form if you're under 18 years of age, and so we are arguing for 92 years, only based on the precedent of the census.

We would go with 95 or 100 years, somewhere in that period, but we do strongly urge that there be a date based on the date of the document as well as the birth and death of the individual. If you can find the birth and death of the individual, that's okay, but in many cases you can't. Then there has to be a document date in order to allow proper disclosure.

[Translation]

Mr. James Lambert: The Association des archivistes du Québec is proposing 100 years. However, we are somewhat bound by the recommendation that we made in Quebec with respect to the legislation on personal information in the private sector. Initially, last fall, I believe we proposed 75 years. In the meanwhile, we conducted a study of the Canadian and international legislation and concluded that it was usually between 75 and 100 years.

The government set to work and then proposed 150 years, which we find still too long. It was brought down to 100 years after some negotiations. There is not a great deal of difference between 92 and 100 years.

• 1035

In our opinion, the important thing is to calculate the period starting on the date of the document rather than the date of death or the birth date. If the calculation is based on the date of birth or of death, and that period is shorter, that's even better. But there has to be at least one date based on the date of the document, because it is much easier to calculate the period for the protection of private information contained in a dated document than to try to find Joe Blow's birth date.

[English]

Mr. Walt Lastewka: So if we pick 100 years, you will go along with it, I take it, just so it's consistent.

The Chair: Joanne, do you wish to respond?

Ms. Joanne Burgess: I just want to add that in our briefs to the Quebec government we've also recommended 100 years from the date of creation of the document, especially since that really becomes sort of the date for the most sensitive data, and there are already provisions in the legislation for less sensitive data to be used and, in certain cases, disclosed. So in that sense there's enough flexibility. That's really a maximum period and we'd support that.

Mr. Walt Lastewka: Going back to your earlier presentation, you referred to the Y2K problem. Of course, this committee has been very active for a number of years already on the Y2K problem. But if there ever were a time when the societies and groups across the country had to get unanimity in order to get the message out of the importance of archival works, as you've said here today, it's now. Various groups across the country must be almost in the position—where you've brought some items here today—to educate people on the importance so they can understand why we need to do things, because it's just being obliterated, all because of a lack of knowledge.

Mr. Chad Gaffield: The two stories most common in the newspapers that relate to this are on the fear of misuse of personal information and so on and the lack of understanding of our history, knowledge of ourselves and so on. So it seems to me we're offering a way to reconcile both of those, to say they're both legitimate concerns and we can bring them together. That's why the word that comes out of this is balance. We're searching for a balance, and I think the specific recommendations suggest that by working with this legislation, we can arrive at a balance.

Mr. Walt Lastewka: Thank you, Madam Chair.

The Chair: Thank you, Mr. Lastewka.

Madam Lalonde, do you have a final question?

[Translation]

Ms. Francine Lalonde: Yes. What time do we have to finish?

[English]

The Chair: At about 10.40.

[Translation]

Ms. Francine Lalonde: This will be my last question. Ms. Lacasse and Mr. Lambert, I would like you to give us some explanations on your recommendation number 2. Some previous witnesses have noted that the bill failed to define certain key words, such as “personal information”. Would you pease give us your definition?

Ms. Danielle Lacasse: Basically, this is somewhat linked to one of the concerns that you expressed a while ago concerning two worlds.

These two worlds refer to different documentary situations, because it is very easy to find personal information in computerized folders or files, particularly with all the scanning software that exists. In manual folders or files that are not structured by nominative criteria, namely, files organized by theme, chronologically or in some other way, it is almost impossible to scan and identify personal information, because of the work involved.

Ms. Francine Lalonde: It's a protection.

Ms. Danielle Lacasse: Yes, it is a protection. These documents enjoy a natural protection, as we have used the term. Because of that, deliberate fraud is almost impossible.

That's why we thought it would be good to clarify the definition of "personal information" so that documents that are not organized by name, manual documents, are excluded from this piece of legislation. This is the type of balance that we are looking for.

• 1040

To some extent, certain considerations should be strengthened with respect to consent, etc. However, we still have to be able to use these documents.

Mr. James Lambert: I would simply add that this exemption is important to archivists because it will save them from having to read page after page of research documents to find personal information which by chance may be contained in a document where one would not expect to find it. In other words, there will no longer be any legislative obligation to look for this information.

Ms. Francine Lalonde: I'm not sure that I've understood everything. I think that this is something that is important, but I don't understand everything.

Mr. James Lambert: As Ms. Lacasse as just said, we are thinking about personal information in manual documents, information that is not easy to find because these documents are not organized on the basis of someone's name.

Ms. Francine Lalonde: You will not, for instance, have to look for my name.

Mr. James Lambert: That's right. Let's use the example of departmental correspondence, where we would not expect to find personal information. In principle, we currently have to read every letter, every document, page by page in order to find personal information which may or may not be found there. Perhaps there is no information contained in these documents, but we are compelled to check.

With our proposed exemption, we will no longer have this obligation. However, there's no reason to do this because nobody would look for personal information in these documents.

Ms. Francine Lalonde: With the exception of an historian.

Mr. James Lambert: Not even an historian. This historian would have to have unlimited resources. I don't know any who have such resources.

[English]

The Chair: Madame Burgess wishes to reply as well.

[Translation]

Ms. Joanne Burgess: It seems to me that the AAQ's suggestion is very similar to British law. After review, the scope of the Data Protection Act is limited to electronic records and data organized by name when they are stored on hard copy.

This same distinction was included in the amendments to the Quebec Act as there was a desire to make an extremely restrictive system more flexible. In this particular case, the bill states that anything that is not organized by name can be used. Consequently, archivists will not have to sort through all material organized in this fashion.

Ms. Francine Lalonde: It's important to define what the bill says.

Ms. Joanne Burgess: Our recommendations did not go as far because we are really anxious to exempt a significant amount of information from the scope of the law.

This can be achieved in the same way by subsections 7(3)(f) and 7(2)(c) together. Obviously, such a recommendation has the advantage of simplifying the processing of data and archive groups for companies. It is clear that this may exempt sensitive information from the scope of the law.

[English]

The Chair: Thank you. Merci, Madame Lalonde.

Mr. Shepherd, do you have one last question?

Mr. Alex Shepherd: I was interested in your comments about encryption. I guess in the city there are people spending millions and millions of dollars on encryption technology. It seems to me what you want is the key. Is that a fair analysis? I was interested in your argument that maybe the National Research Council should have that key somehow. You have to pardon my ignorance about technology. I'm not exactly sure how that would benefit you. Is that the gist of your suggestion?

Mr. Terry Cook: Where it's posed in government, the suggestion should be that the public key infrastructure for secure signatures and encrypted documents should be centrally controlled, and the legislation should impose a consistent way of encrypting documents and de-encrypting documents.

Our reading of the legislation is that it is permissive and allows each department to develop their own mechanisms. That's a prescription for chaos.

• 1045

There are Swedish and European examples of focusing that key. So whether it's the National Research Council and the National Archives working together, or some other logical body, such as Industry Canada, they would control the encryption and be a source of information. So those encrypting documents and those un-encrypting documents would use a similar set of procedures, standards, protocols, and so on.

Mr. Alex Shepherd: Are you saying that should be properly addressed in this legislation?

Mr. Terry Cook: It should be addressed in either the legislation or the regulations that go with it.

The Chair: Thank you very much, Mr. Shepherd.

I want to thank the four witnesses and all the people who accompanied them for being with us today. We appreciate it. Your briefs were very thorough and lengthy. I'm not sure if we'll be able to accomplish all of your suggestions, but we appreciate them. They have brought us to a different discussion today, a different thought process for the committee, and we appreciate it very much. We welcome you back another time for another matter.

We're not adjourning yet, so committee members, don't leave.

I just want to bring committee members back to the item on the agenda about consideration of the Canada Small Business Financing Act. We're going to circulate the draft report.

Again I thank the witnesses and apologize, but we have to move on to something else. We just want to concur on our draft reports. I need a motion.

• 1050

As I said earlier, we contacted all of the witnesses and none of them wished to appear. Everyone was satisfied with the regulations. We didn't receive letters in writing from them, but we've spoken verbally with them all.

The Canadian Restaurant and Foodservices Association received a response from the majority of its members and they are satisfied with the regulations, as are the Canadian Bankers Association, Jason Baldwin, the Canadian Federation of Independent Business, and the Canadian Franchise Association.

Mr. Stan Keyes: I move the motion.

The Chair: The draft report has been moved and seconded.

(Motion agreed to)

The Chair: Thank you very much. Again, I would encourage members next week when we're not here to take a look at Bill C-54 and maybe have their staff pull up some of the testimony we've heard. It's very complex and technical. There are a lot of changes that are being requested of this committee, and I think it's important that we give it some thorough analysis.

Madame Lalonde.

[Translation]

Ms. Francine Lalonde: Would it be possible to draw a comparison with the European guideline during the break?

[English]

The Chair: I don't think you're going to get it before the break.

Ms. Francine Lalonde: I don't mean before the break; I said utilize the break time in order to draw on that.

The Chair: Okay. I'm sorry, I misunderstood the translation. Hopefully we'll be able to do that, but again it's very complex to do and will take some time.

[Translation]

Ms. Francine Lalonde: He can use the comparison made by Mr. Flaherty in British Columbia. Mr. Flaherty, the Privacy Commissioner, has already made a comparison between the CSA standard, the Quebec legislation and the European guideline.

[English]

The Chair: And the European...? Okay. Was that in his testimony in December? Did he submit a comparison back then?

Ms. Francine Lalonde: He must have sent it because he said he would.

The Chair: I referred to it. Maybe we can check with—

Ms. Francine Lalonde: Anyway, it's on the net.

The Chair: Okay, thank you very much.

The meeting is adjourned.