By Ian McAndrew and John Horodoyski(*)

With passage of the National Archives of Canada Act in 1987, the Canadian parliament declared that records created by ministers of the Crown were no longer private property. Under Section 4 of the Act, the National Archives was named as the "permanent repository" not only for departmental records, the institution’s traditional domain, but also for the records which had formerly belonged to elected officials heading the various departments—the ministers of the Canadian cabinet. Section 5 gave force to this provision, dictating that "no record under the control of a government institution and no ministerial record, whether or not it is surplus property of a government institution, shall be destroyed or disposed of without the consent of the Archivist." From this point forward ministerial records at the federal level have been public records, and cabinet officers are permitted neither to destroy them, nor to maintain possession upon departure from office.(1)

The research project reported in this paper was designed to study various aspects of the ministerial records dilemma in Canada, and its final product will have several aspects. One will be an extensive literature review exploring many issues related to the topic: the ministerial records question; the executive records question in the United States; certain academic debates in public administration related to secrecy in government; and pertinent aspects of British and Canadian constitutional theory. The remainderof the report will be comprised by a comparative analysis of regimes currently in use in Canada at the federal, provincial, and territorial levels, and an evaluation of these culminating in a set of conclusions regarding methods for assembling a ministerial records regime with maximum strength and effectiveness. Due to time constraints, this paper only addresses one of these topics—presenting, in a brief synopsis, a ‘status report’ on the various kinds of ministerial records regimes currently in place. In doing so, the paper argues that none among the current systems—not even that created by the National Archives of Canada Act—represents a comprehensive set of regulations, and that all require significant alteration if they are to serve effectively as instruments for enforcing mandatory transfer. Also due to time constraints, it has been necessary to omit discussion of legal regimes in those jurisdictions where ministerial records are still regarded as private property (Saskatchewan, Prince Edward Island, Newfoundland, and Quebec.)

METHODOLOGY: At its outset, the researchers aimed to collect data from all thirteen major Canadian public repositories; that is, from the National Archives of Canada, each of the ten provincial archives, and two territorial archives. (Nunavut was excluded from analysis due to its nascent presence in Canada.) For this reason, the researchers created a data gathering instrument, a questionnaire, to be mailed to each of the thirteen major Canadian public repositories. Unfortunately, that data, however limited, was in itself an aberration on the questionnaire. Out of a total of thirteen respondents, only two institutions were able to provide statistical figures on the questionnaire. (Another institution did provide figures, though, was rejected by the researchers due to their status as "approximations" of numbers, and not the "actual" figures.) As questionnaires were slowly returned, it became quite evident of a problem both in the design of the questionnaire and as a result, for the respondents in attempting to fulfill the requirements of tracking accession figures for ministerial records. In hindsight, the designers of the questionnaire admit their discretion in the overall design of the questionnaire as "over-zealous" in an attempt to procure accessions’ figures of ministerial records for such an extensive period of time. Furthermore, the operational logistics and physical manpower available in each archival jurisdiction to obtain those figures via database manipulation was never fully explored by the researchers, as it was believed to be a reasonable exercise to complete. The configuration for the electronic tracking of a specific series or class of records by each institution may have been more time consuming or difficult than had been previously considered. Further research may determine if internal computer systems of the institutions are not able to provide accruals of ministerial records because the query of ministerial record is most probably not applicable or available to existing configurations.

STATUS REPORT: The most striking feature of ministerial records regimes in Canadian jurisdictions to emerge from this comparative survey is their variety. While it is beyond the scope of the study to attempt accounting for the deeper origins of the various systems in place, it is worth noting that their diversity is as broad as that distinguishing the political and legal cultures, and the archival traditions, distinctive to Canada’s regions, provinces, and territories. The following status report is organized into a typology, grouping together those jurisdictions that share similarities. Examined first are those jurisdictions, including both territories examined in the study, where ministerial records are considered to be public records, but in which little attempt has been made to address the ministerial records question through exerting managerial control. Second, the systems in the balance of provinces are presented, those in which the need for managerial control has been recognized. Finally, the system employed by the National Archives of Canada is examined.

Northwest Territories, Yukon, and New Brunswick: In the Northwest Territories, Yukon, and New Brunswick, ministerial records are considered to be public records. In each instance, while legal regimes at least have this to speak in their favour, there are still significant dilemmas—ones related to statutory ambiguity. Beyond these problems, moreover, which are in fact characteristic of legal regimes in all provinces and territories, control of ministerial records in these jurisdictions is also characterized by an absence of managerial, or archival, control.

Nowhere in the archives acts of Northwest Territories, Yukon, or New Brunswick, nor in the New Brunswick Public Records Act, are ministerial records either defined or mentioned. Indeed, in each case the basis for recognizing these materials as having the status of public property is tenuous, or derivative. In the Northwest Territories, for example, the responding archivist explained that "certain ministerial records come under the Archives Act," referring to the statute declaring that "public records" includes materials in all forms and formats "held by or under the control of a government body." Government bodies, in turn, are defined to include "a department or division" of the territorial government.(2) The Yukon Archives Act, similarly, defines "public records" as materials in all forms and formats "deposited, on file, or held with or in any department or agency of the government of the Yukon."(3) In New Brunswick, the Archives Act stipulates that public records are those covered under the Public Records Act, and this statute provides a de facto definition of public records as "books, papers and records kept by or in the custody of any provincial or municipal officer in pursuance of his duty as such officer."(4)

The dilemma with regimes of this sort is, quite simply, that they establish ministerial records as public records only in that they imply an equivalency between department records and ministerial records. In turn, the problem at the heart of this dilemma is that statutory implication, which is legally ambiguous by its very nature, has been used to resolve the traditional legal ambiguity surrounding ministerial records: an ambiguity deriving from the fact that ministerial records, under British and Canadian Constitutional tradition, have customarily derived their official status from the conventions of ministerial responsibility and cabinet confidentiality rather than from archives or records laws. The result, then, is that little is clarified: in fact, statutes currently in place in Northwest Territories, Yukon, and New Brunswick may actually assist supporters of private property regimes in their opposition to public records regulations because they allow for defensible arguments that that no statute has revoked or overruled the principles of ministerial responsibility and cabinet confidentiality.

If this legal ambiguity is troubling, what is distinctive in Northwest Territories, Yukon, and New Brunswick, is that there are no scheduling mechanisms in place. In the territories, under systems controlled by the Cabinet Secretaries rather than the public archives’, it does not appear that schedules are not employed at all.(5) In New Brunswick, admittedly, there is at least the possibility of control through this mechanism in that ministers ordinarily file certain among their records along with department records residing in their offices. However, according to one of the responding archivists from New Brunswick, "[ministers’] public records are sometimes kept separately," indicating that there is no legal authority over ministerial records classification—which, of course, will affect archival acquisition.(6) Scheduling, albeit an imperfect mechanism in the best of circumstances, may be the implement that archivists in Northwest Territories, Yukon, and New Brunswick will want to lobby for if they pursue future attempts to strengthen the ministerial records regimes in their jurisdictions.

Nova Scotia, British Columbia, Ontario, Manitoba, Alberta: Archivists in the five jurisdictions next under consideration are forced to rely on laws no more clear than those in Northwest Territories, Yukon, and New Brunswick. Once again, some variation exists. In all cases, however, the relevant laws make no mention of ministerial records, while leaving their status open to interpretation by failing to eliminate vagueness from definitions of public records. In some cases, like Manitoba, the legal regime resembles very closely certain of those already described here. Public records in this jurisdiction are defined as recorded information in all forms and formats "received or created, or deposited, on file, or held with or in any department or agency."(7) In other cases, matters are even less clear. Alberta, for instance, has clear stipulations in the Government Organization Act that the Lieutenant Governor in Council may impose regulations over "records in the custody or control of a department," and determines that "the office of a member of the Executive Council" is included in the definition of a department. In this jurisdiction, however, there is no formal definition of public records.(8) Nova Scotia and Ontario laws feature de facto definitions similar to that in Manitoba, but neither jurisdiction has enacted a formal definition.(9) The British Columbia regime is much like that in Alberta, except that offices of members of the Executive Council are not overtly included in the definition of "department."(10)

As previously noted, ambiguity in legal status is a feature of archives legislation in all provinces and territories. The point should be emphasized as a conspicuous flaw of these regimes—but it need not be belabored further. On a more optimistic note, it can be said that archivists in Nova Scotia, British Columbia, Ontario, Manitoba, Alberta do, at least, have authority to impose schedules. In British Columbia, for instance, general records control imposed throughout government by means of the ARCS and ORCS is supplemented by a set of special schedules designed for less conventional categories, such as special media records and so on. The characteristic feature of the British Columbia system relevant here, however, is that one of these special schedules, schedule 102906, has been designed for Executive Records: "the administrative and operational records of the offices of ministers, deputy ministers, assistant deputy ministers, and equivalent positions." The terms of 102906 dictate, first, that executive records must be classified according to the general requirements of the system, whether under the ARCS or the ORCS; and, second, that "longer retention period or full retention for a given record series" shall also apply. Overall, the system has clear benefits in that the application of a special schedule serves as a backstop, so to speak, to regular scheduling requirements by creating a two-tiered mechanism in attempt to ensure that no records will slip through.(11)

In Manitoba, to take a second example, most scheduling of ministerial records takes place consistently across government at the series level. The overall body of government records is subdivided, as is common across jurisdictions, into fonds corresponding to the departments, independent agencies, Crown corporations, and so forth. Distinctive to Manitoba, though, is that within each fonds is a series designated for the records of the executive head of the agency. In some cases this results in a straightforward inclusion of one minister’s records in one department fonds. In other cases, as when a minister may be responsible, say, for a department and a Crown Corporation, the records of the individual would be divided into two series, each belonging to a different fonds according to the business activity from which they derive. Finally, a separate fonds has been established for the office of the Premier in order to account for the special and distributed responsibilities of this position.(12)

Systems in Nova Scotia, Ontario, and Alberta employ similar mechanisms to those in British Columbia and Manitoba. In Nova Scotia, one Executive Records schedule has been created, and all ministers are bound to apply it to their office files;(13) in Alberta, ministerial records are scheduled as department records;(14) in Ontario, a Ministers Records Common Schedule was introduced in 1999, replacing a system whereby department records management staff possessed discretion to create schedules for their minister’s office.(15) Regardless of their divergences, all these systems reflect an understanding on the part of their designers of one basic point: that a strong ministerial records regime must delegate significant power to those whose responsibility it is to remove records from their creators—those who may not want to surrender them. This is the basic logic that makes records schedules an effective, or potentially effective, tool. For those interested in the proper disposition of ministerial records as public records, it is difficult to have much sympathy for the view that scheduling authority should be limited because the Cabinet requires secrecy in order to meet government responsibility to the public.

National Archives of Canada: If ambiguity represents a cause for concern in examining ministerial records regimes at the provincial and territorial levels, the federal system has, at least, the advantage of clarity in the National Archives of Canada Act; first, in that it explicitly defines "ministerial records," and second in that it actually employs the term in several sections.(16) Both of these features of the Act are noteworthy and significant, particularly in light of the fact that no legal authority in any of the provinces or territories makes any mention whatsoever of ministerial records. It is difficult to see how any regulatory regime for records of government in general can redress the long-standing problem of ministerial records—their legal ambiguity—without adopting these aspects of the federal system.

In addition to these provisions, the Act also incorporates the advantages of the deposit system that was part of federal acquisitions policy in the decades prior to passage of the 1987 law. This method of acquisition was first conceived by W. Kaye Lamb, Dominion Archivist in the 1950s, who saw strategic opportunity in the fact that ministers would welcome, and likely accept, the offer of free removal and housing services for their records if approached in timely fashion by Public Archives staff. In addition, he also realized that in cases where such efforts were successful, the archives would have taken one major step toward formal accession of the material deposited. Initial terms of custody, as offered to ministers from the outset, entailed no transfer of legal title and granted full control over access restrictions to depositors. The hope, though, was that a large proportion of records in custody would never be reclaimed. As it turned out, the hope was vindicated, a point demonstrated by the impressive growth of federal ministerial records holdings throughout the time that the method Lamb conceived was developing into the deposit system.(17) In 1987 the system was written into the Act, in a sense, with the inclusion of the clause establishing that "records of government institutions and ministerial records that, in the opinion of the Archivist, are of historic or archival importance shall be transferred to the care and control of the Archivist in accordance with such schedules or other agreements for the transfer of records as may be agreed on between the Archivist and the government institution or person responsible for the records."(18)

Despite all its advantages, though, the system in place at the federal level has notable flaws as well—flaws that may even neutralize its relative strengths in certain respects. While the Act gives the archivist considerable authority and discretion, and while it sanctions a system that has proven its effectiveness, Section 6, ss. (1) also contains a highly significant omission in that it merely provides vague allowance for the operation of the deposit system, failing to codify or compel its use in specific terms. There are two problems here. First, the alignment between these two parallel systems, on one hand, and the categories of records they are intended to control, on the other, is unclear. That is, the wording of this section fails to mandate that schedules are to be the authorized instrument of transfer for records of government institutions, while "other agreements," or the deposit system, are applicable only to ministerial records. Thereby, the Act leaves open to interpretation the disposition of all records; in theory, a government would have reasonable legal grounds for issuing an Order in Council applying "other agreements" to any class or category of records, or, in effect, to enact in policy an interpretation of the law declaring that the use of schedules is optional. Second, and more relevant here, is that the Act does not state outright what the "other agreements" provision means. Under these stipulations, for instance, there would be little to prevent a fictitious future government from issuing a directive undermining the archivist’s position—again using secondary legislation, but here to give an operative definition to "other agreements" that qualifies or significantly dilutes the mandatory transfer provisions of the Act. In such an event we would be forced to learn the hard lesson of vague language in public sector administrative law: authorizing, rather than mandating, transfer procedures at the statutory level does little more than direct individual governments to define the procedure, a measure that will oftentimes result in contradiction of the intent of the legislature.

Admittedly, both of these scenarios are unlikely to come to pass. Nevertheless, these considerations still point toward the need to tighten up the law, to amend the NAC Act such that it ensures the deposit system can function with integrity and not be subject to inappropriate interpretation. Or, to re-phrase the same point in more forceful terms, perhaps it could be said that the deposit system was originally flawed in that it was dependent for effectiveness not on legal authority, but rather on intangible factors inherent in its design—the tact and timing of archivists involved in attempting to persuade ministers to deposit, the fortunate fact (for archivists) that ministers would rarely have time to worry about their records on the eve of a government turnover, and so on. Writing the system into law, of course, strengthens its authority. However, doing so still presents potential problems in that the "other agreements" provision as it currently stands gives considerable discretion to a government with secretive tendencies, and, as well, to ministers—for instance, allowing them significant influence over access restrictions, and merely warning them not to classify ministerial records along with personal records, without creating enforcement provisions.

Conclusion: At the end of the analysis the deposit system must be recognized for what it initially was, and what it was through the first three decades of its operation: an astute, indeed an outstanding, feat of adaptation to adverse conditions by a dedicated and highly perceptive archivist, and a highly effective system for informal acquisition. To acknowledge its strengths, though, should not necessarily preclude consideration of other mechanisms to enhance ministerial records regulations at the federal level. Amendments instituting archival authority to schedule ministerial records—as exists in several provinces—might be in order. To suggest this, in turn, should not be taken as oversight of the problems inherent in systems used in Canadian jurisdictions below the federal level. In particular, provincial and territorial archivists must convince their legislators to follow the example of the National Archives of Canada Act in its definition and use of the term "ministerial records."

Since W. Kaye Lamb’s time, many concrete and progressive steps have been taken. As of yet, however, there remains no single system in Canada where archival authority over records of cabinet officials is both clear in law and enforceable through mechanisms free of influence from records creators—those potentially having vested interest in keeping them out of the archives. Whether or not we can be of great influence over the law makers who occupy the key position in the affair is an open question. Should we fail to try, though, we will be neglecting important aspects of our professional responsibilities. Worse, we can be assured that legislators will not likely act on their own.

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Citations:

(1) National Archives of Canada Act, Chapter N-2.5 (RS, 1985, c. 1 (3rd Supp.)), s. 4 and 5. For background on the ministerial records question, see Terry Eastwood, "The Disposition of Ministerial Papers," Archivaria 4 (Summer 1977): 3-19. For further discussion of cabinet confidentiality doctrines in the Westminster parliamentary tradition—which are the source of what we refer to here as the "legal ambiguity" of ministerial records—see Kenneth Kernaghan, Freedom of Information and Ministerial Responsibility, Research Publication 2, prepared for the Commission on Freedom of Information and Individual Privacy, (Government of Ontario.) September 1978; and Geoffrey Marshall, ed. Ministerial Responsibility, (Oxford: Oxford University Press, 1989.) For a thorough discussion of ministerial records and the National Archives of Canada, see Carman V. Carroll, "From Deposit to Donation: The National Archives’ Acquisition Strategy for Papers of Cabinet Ministers," Archivaria 25 (Winter 1987-88): 29-43.

(2) NWT Archives Act, RSNWT 1988, c. H-3, s. 1.

(3) Archives Act, RSY 1986, c. 8, s. 1.

(4) Archives Act, RS [New Brunswick] 1996, Chapter A-11.1, s. 1; Public Records Act, RS [New Brunswick] 1998, Chapter P-24, s. 1.

(5) Specifically, the responding archivist from the Northwest Territories explained that "ministerial records are currently not scheduled and are stored in a vault maintained by the Cabinet Secretary;" the responding archivist from Yukon supplied photocopies of a passage from what appears to be a government circular on records management, which explains in part that "[o]n a change in administration, the Cabinet Secretary is responsible for ensuring the records of each Minister of the government, as well as the Cabinet records held by the Executive Council Office, are transferred to the Yukon Archives."

(6) In full, the responding archivist explained that "In the offices of ministers, the public records are sometimes kept separately. In other cases, the minister’s office (public) records are incorporated and integrated into the records of the department." For information on scheduling in New Brunswick, see Provincial Archives of New Brunswick, "CPRS ONLine!: Classification Plan and Retention Schedules for Administrative Records," <http://gov.nb.ca/archives/e/>

(7) The Legislative Library Act, RSM 1987, c. L120, s. 1.

(8) Government Organization Act, ASR, Chapter G-8.5, Schedule 12, s. 14, ss. 2 paragraph (a); and Government Organization Act, Schedule 12, s. 14, s. 1, paragraph (h).

(9) Government Records Act, RS [Nova Scotia] 1995-96, c. 7, s. 1; Archives Act, RSO 1009, Chapter A.27, s. 3-4.

(10) See Document Disposal Act, [RSBC 1979] Chapter 95, s. 1-2; and Interpretation Act, [RSBC 1996] Chapter 238, s. 29. Note that "ministerial office," rather than "department," is the term employed in British Columbia. This usage is confusing when the discussion pertains to records laws and ministerial records, as it does here. However, "ministerial offices" are equivalent to bodies referred to by other terms in other jurisdictions (e.g., "department," "agency," "government institution," etc.) in that the BC laws explicitly make reference to the bodies within the executive branch—not to the offices of ministers in particular.

(11) Province of British Columbia, "ARCS On-Line: Administrative Records Classification System, 1998 Edition," <http://www.bcarchives.gov.bc.ca/arcs/index.htm>

(12) Manitoba Culture, Heritage and Citizenship, "Manitoba Access and Privacy Directory," <http://www.gov.mb.ca/chc/archives/fippa_mn.html>

(13) Nova Scotia Archives & Records Management, "STOR Standard Main Groups, Version 5.3," <http://www.nsarm.ednet.ns.ca/rm/smg.htm>

(14) Government of Alberta, "FOIP: Policy and Practices," <http://www.gov.ab.ca/foip/policy/index.html>

(15) Archives of Ontario, "Recorded Information Management: Information Bulletin #4: Guideline for the Disposition of Ministers' Records and the Records of Political Staff," <http://www.gov.on.ca/MCZCR/archives/english/rimdocs/infobl4.htm>

(16) Section 2 determines that "‘ministerial record’ means a record of a member of the Queen’s Privy Council for Canada who holds the office of a minister and that pertains to that office, other than a record that is of a personal or political nature or that is under the control of a government institution." In subsequent sections, the Act refers to "records of government institutions and ministerial records." See Sections 4, 5, and 6 in particular.

(17) Again, see Carroll, "From Deposit to Donation."

(18) National Archives of Canada Act, s. 6, ss. 1.

(*) Ian McAndrew is currently enrolled in the Master of Archival Studies program at UBC. His academic background is in American history, and he is currently writing a thesis on the United States Freedom of Information Act.

John Horodyski is completing his second year of the Master of Archival Studies/Master of Library and Information Studies Joint Degree Program in the School of Library, Archival, and Information Studies at the University of British Columbia. He currently works part-time at the UBC Extension Library and has worked for two summers as an assistant archivist at the City of Surrey Archives. He will finish his studies in April 2001 and is hopeful of securing employment within Canada.

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© 2000 Archives Association of British Columbia