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Section 18 - Disclosure harmful to the conservation of heritage sites, etc.

Last updated on April 27, 2016

Overview

Section 18 is a discretionary exception to the general right of access to government records related to heritage or conservation under section 4 (Information rights) of the Act.

Section Reference

Section 18 of the Freedom of Information and Protection of Privacy Act

18 (1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to result in damage to, or interfere with the conservation of,

(a) fossil sites, natural sites or sites that have an anthropological or heritage value,

(b) an endangered, threatened or vulnerable species, subspecies or race of plants, vertebrates or invertebrates, or

(c) any other rare or endangered living resources  

Summary

Section 18 gives the head discretion to refuse to disclose information which, if disclosed, could result in damage to or interfere with the conservation of fossil sites, natural sites, valuable anthropological or heritage sites, or endangered, threatened, vulnerable or rare living resources.

Policy

  1. Public bodies shall exercise prudence when considering disclosure of records to which section 18 may apply, bearing in mind the potential for damage to, or interference with, the conservation of fossil sites, natural sites, valuable anthropological or heritage sites, or endangered, threatened, vulnerable or rare living resources.

  2. Public bodies shall consult with the Ministry of Tourism, Sport and the Arts, the ministry responsible for the Heritage Conservation Act, before disclosing information concerning sites that have an anthropological or heritage value.

  3. If a public body identifies information that has conservation of endangered, threatened or rare living resources value, it shall consult with the Ministry of Environment to determine if other circumstances are relevant in making its decision.

Procedure

  1. Preliminary Examination

  2. Line by Line Review

  3. Exercise of Discretion

    A relevant factor in exercising discretion under section 18 is safeguarding the public body’s ability to preserve or protect from harm any of the sites, species or resources listed in 18 (a), (b) or (c).  In many cases, the exact whereabouts or attributes of a site, species or resource this section seeks to protect are not common knowledge.  That fact alone may be the main safeguard the public body must preserve.

    Before exercising discretion to release information under this section, public bodies shall consult with the Ministry of Environment or the Ministry of Tourism, Sport and the Arts, depending on the types of records involved, to determine if other circumstances are relevant to its decision.

  4. Severance

    Care must be taken that information considered for release, when combined with other available information, would not result in any of the harms contemplated in section 18.

Interpretation

Interpretation Note 1:

In damage to

"Damage" refers to destruction, deterioration or reduction in value of a fossil site, natural site, anthropological or heritage site.  Damage also refers to harming a habitat, or impairing the health or safety of a population of an endangered, threatened or vulnerable animal or plant species or subspecies, or any other endangered or rare living resource.

Examples

  • The location of the Burgess Shales fossil site which contains fossils that are 560 million years old was not revealed until the site could be designated as a national park under federal law.  The inherent value of this site in British Columbia’s Rocky Mountain range justified the secrecy of its location until it could be protected by statute.

  • The disclosure of locations of native burial caves could result in damage through vandalism and desecration.

Interfere with the conservation of

Interfere"

"Conservation" means the safeguarding of a resource for the future by active physical preservation and/or legal protection. Interference with conservation means any activity that might threaten the integrity or continued existence of a resource.

Interpretation Note 2 (Section 18(a)):

Fossil sites

A "fossil" means any remains, trace or imprint of a plant or animal that has been preserved in the earth’s crust since some past geological or palaeontological time.

"Fossil sites" mean land, including land covered by water, upon which fossils are present.

Example

  • Some fossil sites may contain specimens that are rare or new to science, and which need to be protected from unauthorized collection.

Examples

  • The location of a cave which has fragile or scientifically important features.
  • A unique land formation caused by an unusual geological development.

Sites that have an anthropological or heritage value

"Sites that have an anthropological or heritage value" has been prescribed in the Freedom of Information and Protection of Privacy Regulation, B.C. Regulation 155/2012 as follows:

For the purposes of section 18 of the Act,

(a) a site has anthropological value if it contains an artefact or other physical evidence of past habitation or use that has research value, and

(b) a site has heritage value if it is the location of a traditional societal practice for a living community or it has historical, cultural, aesthetic, educational, scientific or spiritual meaning or value for the Province or for a community, including an aboriginal people.

The broad descriptions of anthropological and heritage sites set out in the regulation, guide public bodies in determining whether a specific site may be considered an anthropological or heritage site, for the purposes of section 18.

In order to withhold information under section 18, it must be reasonably likely that the harm set out in the exception would result from disclosure.

Heritage Conservation Act

The Heritage Conservation Act states:

3 (3)  Despite the Freedom of Information and Protection of Privacy Act, the minister may refuse to disclose information in the Provincial heritage register and other information obtained in the administration of this Act or the Museum Act if any of the following apply:

(a)  disclosure of the information could, in the opinion of the minister, result in damage to or interfere with the conservation of a heritage site or heritage object;

(b)  disclosure of the information would violate an agreement made under section 4;

(c)  anthropological information that is of traditional social, spiritual or other cultural importance to a living community

(i)   was obtained under conditions of confidentiality, or

(ii)   is confidential at the request of representatives of the community whose heritage is represented by the information.

This notwithstanding clause allows the minister to refuse to disclose information in the Provincial heritage register and other information obtained in the administration of the Heritage Conservation Act or the Museum Act with less restrictions than those included in section 18 of the Freedom of Information and Protection of Privacy Act.  Agreements under section 4 of the Heritage Conservation Act refer to formal agreements between the province and first nations in respect of the conservation and protection of heritage sites that represent the cultural heritage of aboriginal people.  The notwithstanding clause, if invoked by the public body, precludes the release of the designated records under the Freedom of Information and Protection of Privacy Act.

"Sites of heritage value" means land, including land covered by water, upon which resources are located that are the products of the province's human history or which are of scientific, aesthetic, cultural, educational, or historical value, and are of such merit or scarcity as to justify their conservation.  

Examples

  • Shipwrecks off the BC coast may be susceptible to damage and/or looting if their locations were revealed.

  • Buildings of historical significance to the province may be damaged and/or looted if their locations were revealed before adequate protections were put in place.

The Heritage Conservation Act, section 1, has defined the following terms:

"heritage site" means, whether designated or not, land, including land covered by water, that has heritage value to British Columbia, a community or an aboriginal people;

"heritage value" means the historical, cultural, aesthetic, scientific or educational worth or usefulness of a site or object. 

Interpretation Note 3 (Section 18(b)):

Endangered 

"Endanger" means to place in danger [OED 9th].

An "endangered species" is any species of flora or fauna that is threatened with imminent extinction throughout all, or a significant portion of its natural range.  This species should appear on the national endangered species list compiled by the Committee on the Status of Endangered Wildlife in Canada, be a "S1" on the tracing list of B.C. Conservation Data Centre, or be designated as endangered under section 6(1) of the Wildlife Act by the Lieutenant Governor in Council by regulation, or other legislation.

The following species have been designated as endangered species under the Wildlife Act (Designation and Exemption Regulation (Wildlife Act), B.C. Regulation 168/90):

(a) Vancouver Island Marmot

(b) Sea Otter

(c) Burrowing Owl

(d) White Pelican

Threatened

"Threaten" means to create the possibility or risk of harm, or jeopardize an individual’s safety or mental or physical well-being.

A "threatened species" is any species of flora or fauna that is likely to become endangered in Canada or British Columbia if the factors affecting its vulnerability are not reversed.  This species should appear on the national threatened species list compiled by the Committee on the Status of Endangered Wildlife in Canada, be an "S2" on the tracking list of the BC Conservation Data Centre , or be designated as threatened under section 6(2) of the Wildlife Act by the Lieutenant Governor in Council by regulation, or other legislation.

Examples

  • Northern Linanthus
  • Umatilla Dace
  • American Peregrine Falcon

Vulnerable 

"Vulnerable" means may be wounded or harmed [OED]. 

A "vulnerable species" is any species of flora or fauna which are of concern because they are naturally scarce or likely to become threatened as a result of disclosure.  This includes species occurring at the fringe of their range or in restricted areas and thus particularly susceptible to human impacts.

Examples

  • Western Rattlesnake
  • Killer Whale
  • White sturgeon
  • Yew Tree

Species, subspecies or race of plants, vertebrates or invertebrates

In the system of classification of living organisms, "species" is a category that consists of similar individuals which are capable of exchanging genes or interbreeding [OED].

A "subspecies" is a class of species which has been geographically isolated form the rest of its species but still can interbreed and exchange genes with others of its species [OED]. "Race" means a genus, species, breed or variety of animal, plants, or micro-organisms [OED]. In the system of classification of living things, a "race of plants" is any genus or species of plant contained in the Kingdom of Plantae. 

Examples

  • Orchids
  • Mosses

In the system of classification of all living things, a "vertebrate" is an animal in the Kingdom of Animalia which has a spinal column.  

Examples

  • Mammals
  • Birds
  • Reptiles
  • Amphibians
  • Fishes

In the system of classification of all living things, an "invertebrate" is an animal in the Kingdom of Animalia, which does not have a spinal column. 

Examples

  • Crayfish or crabs
  • Insects
  • Spiders and mites
  • Marine life such as a starfish, or jellyfish

Interpretation Note 4 (Section 18(c)):

Any other rare and endangered living resources 

This phrase describes any other living organism which is neither plant nor animal, but is in the classification of all living things.  This includes the Kingdoms of Monera, Protista, and Fungi.   These living organisms must be rare, i.e., uncommon, scarce or seldom found, or they must be considered endangered, as defined above.

Example

  • Chanterelle mushroom or the pine mushroom

Sectional Index of Commissioner's Orders

For orders organized by the Act's section numbers, Click here.

For a summary of Commissioner's orders and policy interpretation of key points, Click here.

Last updated: July 16, 2007