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PART 4: Section C of the Terms and Conditions

4.1 Selection of Archival Records

The scope and definitions in Section A of the Terms and Conditions establish what records are "true" case file records for the purpose of this MIDA. The seven archival criteria in Section C establish whether case file records have archival value. The criteria have been developed based on research into previous archival decisions made by generations of archivists at LAC.

Each of the seven criteria is meant to identify the kinds of records that archives world-wide have traditionally agreed are crucial for protecting individual and collective rights within society, and for documenting the obligations between individual citizens and the state. This MIDA extends the principle of safeguarding rights to include: accountability of government in areas of compensation, carrying out fiduciary obligations, and upholding federal responsibilities in domestic and bilateral or multilateral international treaties. The archival criteria further document the role of the federal government with respect to governance by identifying the records of quasi-judicial and judicial bodies; records documenting the highest level of decision-making within the federal government; investigative activities; and research activities in the scientific, social and cultural domains.

Specifically, in the correct sequence of applying these Terms and Conditions, an institution must:

• First, apply Section A which determines if an institution can apply MIDA No. 2005/006 to any of its records covered by this MIDA and what constitutes defines operational case file record.

• Second, apply Section B, but only after the institution has determined what (if any) are its operational case file records. Section B states the institution's obligations in relation to its archival and non-archival operational case file records.

• Third, Apply Section C, which instructs an institution how to determine and segregate its operational case file records that have archival value, and thus must be transferred to LAC. Those records with no archival value may be destroyed.

The application of these Terms and Conditions cannot work correctly if an institution applies the seven criteria for archival value before establishing that the records meet the definition of an operational case file record provided in Section A.

The purpose of Section C of the Application Guide is to provide examples and descriptions of what are considered archival case file records under each of the criteria. Records management staff are to apply these criteria to their institution's operational case file records. Some records may already be covered by Institutional-Specific Disposition Authorities (ISDAs) that must be applied before applying any MIDA. When in doubt about applying Authorities to your records, see Part 2 of this Application Guide. For further information, consult the portfolio archivist.

Operational case file records that meet any of the seven archival criteria listed below are considered to have archival value and must be transferred to the care and control of Library and Archives Canada according to Section D of the Terms and Conditions. Government institutions must contact their portfolio archivist at LAC to confirm the archival selection and transfer arrangements prior to segregating all archival records from the non-archival records.

The seven archival criteria are:

1) Records crucial for the protection of individual and/or collective rights and that document obligations of citizens.

Specifically, the archival records are those that prove, grant, establish, and/or evidence the rights and obligations of citizens, and those that contain vital or essential information about citizens.

These archival records include only the following examples:

Stress is placed on only the following and may not be applied to other records.

• Civil status records pertaining to immigration status, Canadian citizenship, and the status of Aboriginal peoples. These are the government records that confirm the status of an individual as an immigrant, a citizen, or as having Registered Indian status, all of which are the basis for certain rights in Canadian society. This includes the Record of Landing or Confirmation of Permanent Residence for immigrants; Citizenship Certificates or other proof of citizenship records; and the Indian Register and supporting documentation confirming the claim for status.

• Land Registers. These records are generally held at the provincial government level. However, there are some records held by the Government of Canada that establish land ownership, rights of way and other rights associated with the use of land under federal control.

• Survey records collected by Statistics Canada for the Census of Population. This refers to the survey questionnaires completed on behalf of or by individuals being enumerated for the Census of Population by Statistics Canada. Although Statistics Canada and other government institutions may conduct similar surveys on individuals, households, select groups of individuals, and businesses, none of the case file records created as a result of these other surveys are considered archival under this criteria of MIDA No. 2005/006.

• Taxation records consisting of the Taxpayer Master file and its successors. Only those case file records created during the processing of individual T1 tax returns are considered archival under this criteria of MIDA No. 2005/006, based on RDA 92/005. Other tax records are created by corporations and other legal entities are not considered archival under this criteria.

These four groups of records were identified as having archival value under this MIDA as a reflection of the general consensus in the international community that archives have a responsibility to preserve records essential for the protection of citizen's rights and obligations.

The four groups of case file records listed above are the only case file records which meet Archival Criteria 1 under this MIDA.

2) Records of judicial or quasi-judicial decisions

Specifically, the archival records are those that document any final decision made by the highest judicial or quasi-judicial level possible for a specific case.

In order to avoid duplication, this archival criteria is only for decisions made by judicial and quasi judicial bodies. It does not apply to line departments or entities where a case originates.

The archival records include:

• Records of decisions appealed to a superior court by a judicial or quasi-judicial.

In addition, the archival records are:

• Records documenting decisions made by a federal board, review board, appeal board, administrative tribunal, court, or other independent entity, responsible for rendering judicial or quasi-judicial decisions and which are:
  • Records of decisions considered to be precedent setting at the time of decision, or
  • Records of decisions that have attained a high media profile.

The following explains the meaning of precedent setting and high media profile:

• Decisions considered to be precedent setting at the time of decision. Records of precedent setting judicial cases add value to the interpretation of the law and consequently the practice and administration of law. These records document cases which challenge previous interpretations, set new interpretations, or result in legislative changes. Determining whether a case file record documents a precedent setting case requires legal expertise. In some institutions this is determined solely by legal counsel.

• Decisions that have attained a high media profile. These records are easily identifiable by the institution at the time when the case is in the public view or discussed in various public media. High media profile may be national and/or regional in scope.

Examples of superior courts include the Supreme Court of Canada, the Federal Court of Canada, the Federal Court of Appeal and Tax Court of Canada.

Examples of institutions considered to be judicial or quasi-judicial decision making bodies include, but are not restricted to: Human Rights Tribunal, Canadian Cultural Property Export Review Board, National Parole Board, Occupational Health and Safety Board, Canadian Industrial Relations Board, Public Service Staff Relations Board, Immigration and Refugee Board, and the Pension Appeals Board.

Archivists may take less than the whole, based on a determination of what volume of records is sufficient to document this function.

3) Records that document decision-making by the Deputy Head (or equivalent), Minister, Cabinet or Prime Minister.

This criteria is intended to capture decision making at the highest levels of government. For line departments this means the Deputy Head, or Minister. For other Government of Canada institutions this might mean a Chief Executive Officer, President or Chair of the Board, or some other equivalent executive position.

This MIDA is not intended to replace the records identified as archival by RDA 96/021 (Institutional Records in the Office of the Minister) or 96/022 (Records of Deputy Heads of Government Institutions). Rather it captures exceptional instances of high-level decision making which is documented in case file records.

This criteria applies to those decisions which are routinely raised to the highest level, as well as those that document extraordinary intervention or even reversal of decisions. For example, Treasury Board Secretariat policy states that major crown projects must be approved at the highest level. This is routine.

Specifically, the archival records are those that document decisions that are approved by, or that document intervention at the level of, the Deputy Head (or equivalent), Minister, Cabinet, or Prime Minister.

These archival records include, but are not restricted to, the following examples:

• Records documenting approval of Major Crown Projects starting with approval in principle from Cabinet, and approval for economic development projects for which their funding requests require, at minimum, approval by the Minister. Such projects may involve investments, grants, and/or partnership agreements with other levels of government and/or the private sector.

The rationale for identifying case file records for Major Crown Projects (MCPs) as having archival value, and similar projects described within the Management of Major Crown Projects policy from the Treasury Board Secretariat, is based on the fact that the Government of Canada regards these MCPs as having significant policy implications, possibly affecting the fiscal framework of government, and of such high risk that the management framework for MCPs requires the sponsoring departments to obtain approval-in-principle from Cabinet for the project. This approval and decision making policy required from the highest levels possible within the Government of Canada, for the reasons just given, is indicative of the historic significance of the projects and the archival value of the records of decision. MCPs often involve partnerships with a number of government and non-government stake-holders including other federal departments, the provinces and/or the private sector. Given the size of some MCPs, archivists may apply the test of sufficient volume.

• Records documenting the intervention of the Deputy Head, Minister, Cabinet or Prime Minister in immigration cases.

This criteria seeks to identify those case files that document the intervention of the Deputy Head, Minister, Cabinet or Prime Minister in granting entry to individuals who would normally be inadmissible under the Immigration and Refugee Protection Act. These cases are considered extraordinary because of their discretionary nature and the case file records therefore provide insight into the use of authority at this higher level of government.

• Records documenting recommendations made through normal procedures and overturned by the Deputy Head (or equivalent), Minister, Cabinet, or Prime Minister. These cases may include decisions concerning the granting, approval, or rejection of requests for government assistance.

For example, where a grant is refused in the normal course of business but is approved as a result of intervention at a higher level.

• Records documenting decisions made by the Deputy Head (or equivalent), Minister, Cabinet, or Prime Minister which reverse, or alter, the normal course of business.

For example where criminal sentences are commuted as a result of the direct intervention of the highest levels of government.

4) Records that document federal responsibility in the areas of compensation and fiduciary obligations.

Specifically, the archival records are those that document a significant or unique type of compensation by the government and/or the exercise of its fiduciary obligations, where the government has accepted responsibility for care and/or compensation of an identifiable sector of society (based on a particular set of circumstances), which results in a specific type of settlement, benefit, or redress having an impact on Canadians or an identifiable sector of society.

These archival records include, but are not restricted to, the following examples:

• Hepatitis C victims eligible for government compensation, either through the results of the Krever inquiry or other government decisions.

• Japanese Canadian Redress for their treatment during Second World War.

• Chinese Canadian Head Tax compensation.

The key to applying this criteria is to understand that it applies to specific and identifiable groups in specific and unique situations. It is not meant to apply to employment insurance, pensions, or other general and ongoing forms of compensation.

It is meant to apply in cases where the federal government caused harm, either directly or indirectly (including through negligence) and has taken steps to compensate for it.

The relationship between the Government of Canada and the Aboriginal people of Canada has a fiduciary component which means that the government has historically acted on their behalf, holding land and monies in trust. This is a unique relationship between the Government of Canada and the Aboriginal people of Canada. Records documenting the fiduciary relationship between the Government of Canada and the Aboriginal people of Canada meet Archival Criteria 4, however the portfolio archivist may take less than the whole based on what is sufficient to document this relationship.

5) Records that document responsibility and claims by or against the Canadian government under any of its domestic treaties, or bilateral and multilateral international treaty obligations.

Specifically, the archival records are those that document a claim by or against the Canadian government under any of its domestic treaties, or bilateral and multilateral international treaty obligations; claims that challenge how government fulfills its treaty obligations; and/or treaty claims that cause a change in the way government institutions conduct their business.

This criteria does not mean that all case files created as a result of a treaty or some other agreement are archival. Rather, they must be files which either challenge how government meets its treaty obligations or that change the way government conducts its business.

These archival records include, but are not restricted to, the following examples:

• Land claims by First Nations
• Challenges to hunting, fishing and logging rights by native groups

The challenge in applying this criteria is that many bodies which might create case files of this nature are international agencies such as the NAFTA Secretariat or the World Trade Organization. These agencies do not currently fall under the Library and Archives of Canada Act and are therefore excluded from the scope of this MIDA.

However, federal institutions involved in these kinds of disputes may indeed create operational case file records. In these instances, the Archival Criteria 5 would apply to these resulting case file records.

6) Records that document specific investigative activities under a federal jurisdiction.

Specifically, the archival records are those that document investigative activities under a federal jurisdiction involving deliberative or intense efforts and resources beyond what is normally allocated to complete that business process, or that cause a change in the way government institutions conduct their business.

This criteria applies to investigations carried out as part of the normal course of business, by the RCMP or other bodies, as well as investigations conducted as a result of special events or initiatives.

Not all case files created in the course of investigations are archival under this criteria. The criteria is intended to capture extraordinary cases, including cases requiring deliberative or intense efforts beyond what is normally required or allocated in the regular course of business. This could involve additional funding and personnel, or investigations which take significantly longer than normal. It also includes cases which change the way in which government conducts its business. For example, mad cow disease changed the way in which the government regulates and tracks meat processing.

These archival records include, but are not restricted to, the following examples:

• High profile criminal investigations

• Investigations into threats against national security

• High profile cases involving ethical issues

• Investigations into accidents or situations that result in changes in the way government institutions conduct their business relating to public safety

• Investigations into accidents or incidents resulting in the death of a Canadian citizen, excluding common traffic investigations

• Indian residential school investigations

7) Records that document and /or are used for creative or research activities in the cultural, social and scientific domains.

Specific government institutions have mandated responsibilities in the cultural, social and scientific domains. For example, the Canada Council for the Arts operates in the cultural domain while the Social Science and Humanities Research Council has responsibilities in the social domain. The National Research Council supports activities in the scientific domain.

There is a whole range of activities that may be construed as involving research. These activities include, for example, testing and calibration of instruments, testing of drugs for human consumption, collecting survey data on consumer behaviour, studies on fish stocks, reports and analyses, and medical research isolating the loci of diseases and viruses. For each of these types of research activities case file records may be created, however, not all of these case file records have archival value. In some instances, these records are excluded from this MIDA because they do not adhere to the definition of a case file record because they document longitudinal studies that do not have a clearly defined beginning and an end or are not documented in replicated, standardized, pro forma structured records.

Specifically, the archival records are those that document:

a) research and intellectual decision-making processes resulting in a nationally recognized contribution to the advancement of knowledge in the cultural, social and scientific domains

The key here is the significance of the research or creative activity. Only those case file records that document a nationally recognized contribution to the advancement of knowledge would be considered as archival under Archival Criteria 7.

Archival operational case file records would include for example, records created as a result of researching the impact local and global climate change has on Canada and the lives of Canadians.

b) situations involving deliberative research efforts or resources beyond what is normally allocated to complete that business process

This means that when an institution allocates resources to certain types of investigative activities in the "normal course of business", when it devotes a disproportionately large amount of resources beyond what is considered "normal" to a specific research project, it usually indicates that the case is of an exceptional nature with great significance or significance beyond the institution itself.

Institutions may decide what "beyond what is normally allocated" means for them according to their own scale of federal dollars spent, duration of the research, number of human resources required for the research, or all these factors combined.

c) results or conclusions of research or other intellectual activities (including cultural, artistic and social endeavours) that have a significant impact on Canadians or a broad sector of society

Case files that document how research into a particular issue or situation results in government decisions having a large impact on a broad scale of Canadians are archival under Archival Criteria 7. Examples include decisions for vast immunization campaigns for the health of Canadians, or other decisions based on research, affecting a broad sector of society, such as the closure of the Atlantic cod fishery.

However, case files created as a result of applications for funding for scientific, social or cultural endeavours are not archival under this criteria. For example, applications to the Canada Council and SSHRC require minimal evidence of compliance with the terms of their funding. Grant recipients are only required to submit a summary statement on the use of the funds. These records do not have a significant impact on Canadians or a broad sector of Canadian society because they document the granting process as opposed to the creative process.

d) results of research, studies, or analyses that effect changes to the way government institutions conduct their business

Case files that document how research had an impact on government policy and consequently changed the way government dealt with a particular issue or situation are archival.

These archival records include, but are not restricted to, the following examples:

• Records that document ground-breaking scientific or social science research that challenge existing theories or practices.
• Records that document the approval of pharmaceutical drugs previously banned for human consumption. For example, the use of thalidomide as part of a treatment for cancer.
• Records that document research or survey analysis that causes a change in the way government institutions conduct their business. For example, research into demographic movements which changes the way in which government recruits and selects immigrants.

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