Ingenium – Canada’s Museums of Science (Re), 2024 OIC 11
Date: 2024-03-28
OIC file number: 5820-01373
Institution file number: A-200-0130-20-100
Summary
The complainant alleged that Ingenium – Canada’s Museums of Science and Innovation (Ingenium) improperly withheld information under section 14 (federal-provincial affairs), paragraphs 16(1)(c) (conduct of investigations), 18(b) (competitive position of government institutions or negotiations by government institutions), 18(d) (government financial interests) and subsection 19(1) (personal information) of the Access to Information Act. This was in response to an access request for records related to the loan of objects for the exhibit "Autopsy of a Murder." The allegation falls under paragraph 30(1)(a) of the Act.
The application of subsection 19(1) to withhold signatures was removed from the scope of the complaint.
During the investigation, Ingenium decided to no longer rely on paragraph 16(1)(c) to withhold information. Ingenium also decided to disclose information that it had withheld under paragraphs 18(b) and 18(d), and provided additional information to assist the complainant in interpreting the records received. Given these efforts, paragraphs 18(b) and 18(d) and subsection 19(1) were no longer at issue.
During the investigation, Ingenium invoked paragraph 68(c) (material placed by others in certain institutions). This exclusion was applied concurrently with section 14 to withhold photographs.
Ingenium did not show that the information met the requirements of paragraph 68(c). In addition, Ingenium did not show that the information met all the requirements of section 14, in particular Ingenium did not show that, if disclosed, the information could reasonably be expected to harm the conduct of federal-provincial affairs.
The Information Commissioner ordered that Ingenium disclose the records. Ingenium gave notice that it would implement the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that Ingenium – Canada’s Museums of Science and Innovation (Ingenium) improperly withheld information under section 14 (federal-provincial affairs), paragraphs 16(1)(c) (conduct of investigations), 18(b) (competitive position of government institutions or negotiations by government institutions), 18(d) (government financial interests) and subsection 19(1) (personal information) of the Access to Information Act. This was in response to an access request for records related to the loan of objects for the exhibit "Autopsy of a Murder." The allegation falls under paragraph 30(1)(a) of the Act.
[2] During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate signatures that were withheld under subsection 19(1) of the Act.
Investigation
[3] When an institution withholds information under an exemption or an exclusion, it bears the burden of showing that refusing to grant access is justified.
[4] On November 18, 2022, during the course of the investigation, Ingenium disclosed information it had initially withheld under paragraphs 18(b) and 18(d). Ingenium conceded that this information would not qualify for exemption under the Act. Additionally, on January 23, 2023, Ingenium provided additional information to assist the complainant in interpreting the records received. Given these efforts, paragraphs 18(b) and 18(d) and subsection 19(1) are no longer at issue.
[5] During the course of the investigation, Ingenium decided to no longer rely on paragraph 16(1)(c) to withhold information.
[6] Also, during the course of the investigation, Ingenium determined that the information at issue (images found on pages 95, 141, 155 and 182) were excluded from the application of the Act as a result of paragraph 68(c) (material placed by others in certain institutions). This exclusion was applied concurrently with section 14 to withhold photographs which were taken as part of an application for the “Prix Excellence de la Société des musées québécois” (Prix Excellence) and as part of condition reports.
[7] When the OIC asked Ingenium for additional representations about how these images meet the requirements of section 14 and paragraph 68(c), Ingenium declined to respond to the specific questions that were raised.
Paragraph 68(c): material placed by others in the National Museum of Science and Technology
[8] Under section 68, the right to access records under Part 1 of the Act does not apply to material placed by or on behalf of persons or organizations other than government institutions in the National Museum of Science and Technology.
Is the information excluded from the Act?
[9] According to the Canadian Conservation Institute website, a condition report is a written record that details the condition of an object on close examination. The report records the physical condition of the material, it tracks any changes that happen to the material during exhibition or loan, and also indicates restrictions that may apply to the material with respect to its ongoing display. In the present instance, the condition reports seem to form part of the loan agreement between Ingenium and the Old Port of Montréal Corporation and/or between Ingenium and le Musée de la civilisation à Québec (hereinafter referred to as “le Musée”) for the Autopsy of a Murder exhibition.
[10] In support of the assertion that the information at issue is excluded from the Act under paragraph 68(c), Ingenium stated the material in question was provided to Ingenium by le Musée on behalf of the Coroner’s office, neither of which is a government institution under the Act. Photographs were taken by Ingenium’s staff to document these artefacts borrowed as part of the exhibition, which were then placed into condition reports. As a result, Ingenium asserts that these images as well as the artefacts are covered by subsection 68(c) of the Act, and that, consistent with Philipps v. Canada (Librarian and Archivist), 2006 FC 1378 (Phillips), the images cannot be released to the requester under the Act.
[11] I am not convinced that photographs of the material/artefacts constitute the material/artefacts themselves. In Phillips, the requester sought access to the Bloomfield documents and the court agreed that paragraph 68(c) excluded these materials from the application of the Act. This decision is distinct from the facts at hand. In the present instance, it is not the materials/artefacts the complainant seeks to access, but rather records related to the loan of materials/artefacts for a particular exhibition, which happen to include condition reports and an application for the Prix Excellence. As such, the facts underlying the Philipps decision are distinguishable from those at issue in this investigation and the decision does not support Ingenium’s position that the photographs are excluded from the application of the Act pursuant to paragraph 68(c).
[12] Furthermore, Ingenium’s application of paragraph 68(c) is internally inconsistent and it failed to provide a rationale explaining this inconsistency. Ingenium identified particular images as being excluded from the application of the Act. This distinction appears to have been on the basis that those particular images depicted materials/artefacts related to human remains. I note, however, that Ingenium did not assert that the other images within the responsive records were excluded from the application of the Act. Ingenium therefore appears to have considered that the right of access under the Act did not apply only to these particular images, but has failed to explain why it was not applicable to other images. The distinction was not provided, leading to my finding that Ingenium’s application is inconsistent and ultimately incorrect.
[13] I find that the condition reports, which include images of the artefacts (i.e. human remains), are operational records and do not constitute the artefacts/material placed with Ingenium as contemplated by paragraph 68(c).
[14] The applicant for the Prix Excellence summarized and described the exhibition, provided photographs of the exhibition, as well as letters of support and examples of press releases about the exhibition. The fact that any of the photographs of the artefacts were provided in the application is indicative that the photographs themselves are not materials/artefacts placed by an organization other than a government institution pursuant to paragraph 68(c). Rather, it is indicative that the photos are institutional documents subject to the Act.
[15] In light of the above, I conclude that the information is not excluded from the application of the Act because it does not meet the requirements of paragraph 68(c).
[16] Since the information does not meet the requirements of this exclusion, I also examined whether Ingenium had properly applied section 14 to withhold the same information.
Section 14: federal-provincial affairs
[17] Section 14 allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the conduct of federal-provincial affairs.
[18] To claim this exemption, institutions must show the following:
- Disclosing the information could harm the Government of Canada’s conduct of federal-provincial affairs (for example, information on federal-provincial consultations or deliberations, or Government of Canada strategy or tactics related to the conduct of federal-provincial affairs, as set out in paragraphs 14(a) and (b)).
- There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.
[19] When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.
Does the information meet the requirements of the exemption?
[20] Ingenium applied section 14 to withhold images found in an application for the Prix Excellence (p. 95) and in the Ingenium-prepared condition reports (pp. 141, 155 and 182).
[21] Ingenium explained that it exempted the information following a consultation with le Musée. While the material and artefacts were once displayed publicly as part of the Autopsy of a Murder exhibition, this material, artefacts and associated images are now restricted and no longer available through le Musée’s Online Collections. Ingenium informed the OIC that in 2018, le Musée consulted with the Laboratoire de sciences judiciaires et de médecine légale of the Ministère de la Sécurité publique, and it was decided that public access to these artifacts contravened section 4 and section 5 of the Quebec Charter of Human Rights and Freedoms. Subsequently, the Commission d’accès à l’information du Québec (CAI) determined that disclosure of these images was contrary to the privacy protection under Quebec’s privacy act as well as under the Quebec Charter of Human Rights and Freedoms.
[22] Ingenium argued that the disclosure of the photographs could reasonably be expected to be injurious to the conduct of federal-provincial affairs, particularly in terms of facilitating document sharing between institutions subject to different legislation governing the release of documents. Furthermore, Ingenium argued that the disclosure would likely cause injuries by interfering with and contradicting the Quebec provincial approach to privacy protection. Finally, Ingenium was of the view that it did not have the authority to grant access to the images. Ingenium argued that as a federal entity, to disclose the images would interfere with and directly contradict Quebec’s provincial privacy matters and cause injury in the conduct of federal-provincial affairs.
[23] As noted in Canada (Information Commissioner) v Canada (Prime Minister), 1992 CanLII 2414 (FC), [1993] 1 F.C. 427, the party seeking to withhold a record must establish with clear and direct evidence that there will be a reasonable expectation of probable harm from disclosure of specific information: “the more specific and substantiated the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a court to be satisfied as to the linkage between disclosure and the harm alleged”.
[24] In Criminal Trial Lawyers’ Association v. Canada (Justice), 2020 FC 1146, para. 59, the judge further noted: “It is not enough for the [Access To Information and Privacy] Director to state that disclosure would be injurious to [Federal Provincial and Territorial] relations, without specific evidence in support.”
[25] Ingenium has failed to identify any specific harm to the conduct of federal-provincial affairs that could flow from the disclosure of the images. Ingenium made reference to “document sharing” between organizations being potentially affected, but did not provide an explanation beyond that, nor did it make the connection to federal-provincial affairs. Similarly, assertions of “interference” with federal-provincial affairs, without additional evidence to illustrate the nature of such interference, is insufficient to establish the criteria of section 14. Finally, Ingenium’s assertion that it is not authorized to disclose the withheld images is not convincing. The evidence demonstrates that the images were captured for the purposes of creating institutional records and no evidence has been provided that would support the proposition that Ingenium was restricted in its subsequent use of said information.
[26] In addition to the above, Ingenium did not provide any indication of the likelihood of any harm coming to pass. Section 14 requires that the institution demonstrate the disclosure of the information at issue could reasonably be expected to be injurious. Ingenium’s representations to the OIC fail to address this point.
[27] Ingenium did not show that, if disclosed, the pictures could reasonably be expected to harm the conduct of federal-provincial affairs. Consequently, I conclude that the information does not meet the requirements of section 14.
Observation
[28] During the course of the investigation, Ingenium noted several cases before the Commission d’accès à l’information du Québec (CAI) which allowed an institution to refuse access to similar documents, on the basis that the information was considered to be personal information under the Act respecting Access to documents held by public bodies and the Protection of personal information (Québec legislation).
[29] While that may have been the case under the Québec legislation, the facts of this case and the federal Act, to which federal government institutions, including Ingenium are bound, and which I oversee, do not lead me to come to the same conclusions. The equivalent provision under the Act, section 19 (personal information), was only raised on the signatures contained in the file and not the photographs themselves. In any event, subsection 19(1) (and by reference, paragraphs 3(i) and (m) of the Privacy Act), excludes information about an individual who has been deceased for more than twenty years, from the definition of “personal information”. Personal information that is not about an identifiable person is also not protected under subsection 19(1). I have already concluded in (Re), 2022 OIC 36 that the photos related to the Exhibition “Autopsy of a Murder” do not meet the requirements of subsection 19(1).
[30] Ingenium also referred to a CAI decision where photographs were found to violate sections 4 (dignity) and 5 (privacy) of the Quebec Charter of Human Rights and Freedoms (Quebec Charter) (see 2022 QCCAI 25). In that case, the requester sought to consult the “Album des causes célèbres” which contained photos of nude cadavers of women and children and included identifiable personal information such as the first and last names of the deceased, as well as their date of death.
[31] Although Ingenium is not squarely raising a Charter argument, human dignity and privacy are important values which underlie many rights under the Canadian Charter of Rights and Freedoms (Charter) namely, sections 7 (right of life, liberty and security of a person), section 11 (rights to criminal accused) and section 12 (protection against cruel and unusual punishment or treatment). Unlike the Quebec Charter, dignity and privacy are not stand-alone rights under the Charter (see Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 SCR 307, see paras 77-78, 80). Nevertheless, I have an obligation to consider the values that underpin the Charter as I exercise my discretion in issuing an order under the Act. As such, I must first determine whether my decision engages and limits a Charter protection. If so, I must proportionately balance the underlying Charter value with the relevant statutory objectives.
[32] In this case, Ingenium argued that they could not waive the fundamental rights of the individuals concerned. In considering whether the deceased are entitled to Charter protections, the Federal Court of Appeal has stated that constitutional rights are personal and die with the person whose rights they are (Canada (Attorney General) v. Vincent Estate, 2005 FCA 272, at para 14). Likewise, the courts have stated that Charter rights are a personal right which cannot be asserted by anyone but the person to whom the right belongs (Wilson Estate v. Canada (Attorney General) (1996), 1996 CanLII 2417 (BC SC), 25 B.C.L.R. (3d) 181 (B.C.S.C.), at para 26).
[33] Moreover, the Federal Court of Appeal recently stated that a Charter value cannot be broader than the right which it underlies (Sullivan v. Canada (Attorney General), 2024 FCA 7 (CanLII), at para 11; see also Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426). As noted above, there is no clear and unqualified right to dignity or privacy under the Charter and it is not clear how sections 7, 11, 12 or any other provision of the Charter would apply in the circumstance in order to justify denying the requester his or her right of access.
[34] Seeing as Charter rights do not apply to the deceased, and considering that the Charter value cannot be broader than the right itself, I conclude that the Charter protections are not engaged or limited in the circumstance. However, in the event I am wrong, I will proceed to proportionately balance the Charter values in play with the statutory objectives that I must follow.
[35] Unlike the Québec CAI case which concluded that the disclosure of photographs in the “Album de causes célèbres” would violate the Québec Charter, the photographs in this case do not depict the deceased in their most vulnerable and intimate state, such as being nude, pictures of autopsies being performed or photos of gruesome crime scenes. The photographs in this case are not objectively offensive. They are not shocking, appalling, gruesome or gratuitous. They depict the artefacts on a table or are of photographs of the exhibition where the artefacts were publicly displayed.
[36] The photographs in this case do not capture the deceased in an intimate, compromising, embarrassing, or degrading way which would cause disrespect or dishonor them. Rather, the photographs at issue were taken for data collection purposes. Their public display was meant to educate, inform and serve a public interest.
[37] Given the nature and purpose of the photographs, I conclude that the deceased’s right to dignity and privacy would be minimally impacted by my order.
[38] Moreover, the 20-year limitation relating to the deceased’s personal information set out in the Privacy Act, minimizes the severity of any infringment to their right to privacy and dignity in the circumstance. The Privacy Act and the Access to Information Act must be read together, as they are a “seamless code with complementary provisions that can and should be interpreted harmoniously” (Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66, 2003 SCC 8, at para. 22). The right of privacy is not absolute and Parliament has seen fit to limit the privacy rights of the deceased, as presumably, the need for protection diminishes over time after a person’s death, thereby increasing the right of access. The lack of protection of the deceased’s right to privacy 20 years following their death, also leads me to conclude that my order minimally impairs their rights in this respect.
[39] As noted by the Federal Court of Appeal in Sullivan, a Charter value cannot be used to invalidate the legislative provisions that I must follow (Sullivan, supra at para 12). Therefore, absent any successful legal challenge to the 20-year limitation contained within the Act (and by extension the Privacy Act), I must give the statutory objectives precedence over the deceased’s rights in the circumstance.
[40] Finally, in order to give meaningful effect to the quasi-constitutional right of access, the Federal Court of Appeal has stated that the “general rule is disclosure, the exception is exemption and the onus of proving he entitlement of the benefit of the exception rests upon those who claim it” (Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430, 1997 CanLII 6385 (FCA) in citing 1988 CanLII 5656 (FCA) ). Ingenium failed to demonstrate that they were authorized under the Act to refuse access.
[41] Once I have determined that an institution was not authorized to refuse access, I may make any order I consider appropriate. In order to give meaningful effect to the right of access guaranteed by sections 2 and 4 of the Act, I see no other reasonable option but to order the disclosure of the records unlawfully withheld.
[42] Given the above, I would still have ordered Ingenium to disclose the records.
Outcome
[43] The complaint is well founded.
Orders and recommendations
I order the Director of the National Museum of Science and Technology to disclose the records.
Initial report and notice from institution
On December 19, 2023, I issued my initial report setting out my order.
On January 29, 2024, the Director of the National Museum of Science and Technology gave me notice that Ingenium would be implementing the order. She informed the OIC that she communicated her intention to disclose the information to le Musée de la Civilisation à Québec and le Bureau du Coroner (QC), and that the disclosure of the records could be delayed if those parties seek judicial review. She also informed me that she would release the records to the complainant within 30 days of receipt of this report.
Review by Federal Court
When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, the order(s) takes effect on the 36th business day after the date of this report.