Census

Expert Panel on Access to Historical Censuses

January 6, 2000

Introduction

• The Expert Panel was asked to examine the legal, privacy, and archival implications of providing access to historical census records.
  
• The Panel is to recommend by May 31, 2000 an approach which seeks to balance the need to protect personal privacy with the demands of genealogists and historians for access to historical census records.
  
• I would like to provide the Panel with the benefit of my experience in the matter.
  
• Specifically, I would like to cover three areas: a brief historical background, public response, and finally my perspective on the situation.
  
• Before starting, two points of factual clarification:
  
• It has never been the intention of Statistics Canada to destroy individual forms without first receiving the authorization of the National Archives to do so.
• Paper copies of the individual census forms are not retained once the information has been transferred to a preservation medium, usually microfilm.

Access to the respondent's own personal information:

• Statistics Canada receives requests from individual respondents for a copy of their own information.
  
• This usually occurs just following a census or within the context of a search for pension or citizenship purposes.
  
• Ken Bennett, Director of Census Operations, will be giving you a short overview of this process, as it has a bearing on one of the legislative amendments currently being proposed.
  
• Specifically, the amendment put forward by Senator Milne proposes to allow persons to have their information removed from the records that would be made publicly available 92 years after the census.

Background to the release of historical census records

Legal matters

• David Bolger, Legal Counsel for Statistics Canada, will be providing you with an expert briefing on the legal background.
  
• My purpose today is to review the historical context in which the 1901 and earlier census returns were transferred to the Archives for public access.
  
• I would also like to discuss the 1906-1916 Census period and then the 1921 and subsequent censuses.

Release of the 1891 and 1901 Census records

• Post-war release of the early census records appears to have been undertaken by the National Archives. An article in the journal Canadian Public Administration (1977) states that "apparently the 1871 Census schedules were transferred to the National Archives for research purposes following the 1941 Census and thereafter opened to the public as a matter of course"
  
• In 1983, with the coming into force of the Privacy Act, the release of the 1891 and subsequent historical census records came to the forefront.
  
• Department of Justice legal opinions advised that the 1881, 1891 and 1901 Censuses could be released since the legislation under which these censuses were conducted did not contain statutory confidentiality provisions.
  
• Although census-takers were issued instructions which included confidentiality guidelines, these guidelines did not have the force of law.
  
• Therefore, because the 1891 and 1901 Census records were not subject to any other law prohibiting their disclosure, the regulations under the Privacy Act allowing the release of records from a census 92 years later were applied to those records.
  
• The 1891 Census records were made available to the public in 1983, and the 1901 Census records in 1993.

Status of the post-1901 Census records

• The 1906, 1911 and 1916 Censuses were conducted under the authority of the Census and Statistics Act, R.S.C. 1906.
  
• Legal opinion from Department of Justice in 1985 (subsequently confirmed three times by three different legal advisors):

Census Instructions issued to the Enumerators had the force of law. Included in the Instructions were the secrecy requirements for census information.

• Recent legal opinion written for the National Archives considered, in the context of the 1906 and 1911 Censuses only, the impact of another section of the Census Instructions. This instruction advised enumerators to write clearly and legibly as the census records were to be deposited in the National Archives for preservation.
  
  • This clearly points to possibility of different issues arising with respect to preservation and public release.
  • This opinion raises the possibility that public access to these two censuses may not be legally barred.
    
• 1918: creation of the Dominion Bureau of Statistics. The 1906 Census and Statistics Act was repealed and replaced by the Statistics Act.
  
• The 1918 and subsequent Statistics Acts contain very strong and unambiguous statutory confidentiality protection. It is under this legislation that the 1921 and all subsequent censuses up to present day have been conducted.

Statistics Canada's hands are tied

• Statistics Canada has been accused by those desiring to have access to historical census records as being unaccommodating in this matter. In fact, our hands are tied.
  
• Department of Justice legal opinions support the view that the confidentiality provisions of the Census and Statistics Act, R.S.C. 1906, continue to operate with the respect to the 1906-1916 Censuses and prohibit the disclosure of the individual census records for research purposes.
  
• The conclusion which must be drawn is that without a retroactive amendment, it will not be possible to transfer the 1906 and subsequent censuses to the National Archives for public release.

The 92-year rule

• The precise reason why 92 years was chosen is obscure.
  
• Graham Fraser in his November 4, 1999 Globe and Mail article suggested that: "The figure 92 was arrived at by adding the average life expectancy of 70 to the age of majority." While this calculation may have popular appeal, it is probably not the explanation for the 92-year rule.
  
• A more credible reason was that, when the Privacy Act was made law in 1983, there existed a 92-year difference between this date and the date when the 1891 Census occurred. Thus, the passing of the Privacy Act with the 92-year rule ensured that the 1891 Census records could be released in 1983.
  
• The 92-year rule also quite conveniently ensures that any census would be released to the public during the mid-point of the 5 year census cycle.

Other national censuses

• In the U.S., individual census records are subject to Title 44, the code under which their Archives operate, and are released 72 years following a census.
  
• In the United Kingdom, census records are kept in strict confidence for 100 years after which time they are made available to the public.
  
• Individual census records are not retained in Australia.
  
• All of these countries operate under differing legislation governing the retention and access of individual census returns.

Responses

Position of the Privacy Commissioner

• The best privacy protection for Canadians would lie in the destruction of census records. This is his position as stated in his 1994/95 and 1998/1999 Annual Reports.
  
• Allowing public access to individually identifiable census records represents an unacceptable balance between individuals' privacy rights and the interests of researchers and genealogists.
  
• Public access to historical census records is inconsistent with the guarantee of confidentiality that Statistics Canada gave Canadians when collecting their personal information.
  
• Public access to historical census records also constitutes a violation of the fundamental privacy principle requiring that personal information be used only for the purpose for which it was collected.
  
• Any move to amend retroactively the confidentiality provisions of the Statistics Act to allow the transfer of personal census records to the National Archives would demonstrate to Canadians the fragility of government promises of confidentiality and could undermine the important objectives of the census.
  
• Should it be decided that future census records would be made available to the public through the National Archives, Canadians would have to be notified at the time the data were collected that the confidentiality of individual census data would be protected only for a specified period of time.

Position of the National Archivist

• Census records are a national treasure.
  
• In 1995, the National Archivist approved the disposition of the 1991 and 1996 Census records.
  
• The 1991 Census records are to be retained, although the microfilming was halted due to a lack of funds to complete the process.
• 1996 Census records can be destroyed when Statistics Canada no longer requires them for operational purposes. This destruction is scheduled for July 2000.
  
• Views of current National Archivist, Ian Wilson:
  
• requested that Statistics Canada transfer the 1906 and 1911 Censuses to the National Archives for release to the public.
• It is his understanding that the November 1999 legal opinion from the Department of Justice would permit such a transfer for public release.
  
• I do not share his interpretation of the legal opinion and wrote to him so advising him.

Public lobbying

• Beginning in Spring 1998, there began an active public campaign to lobby the Minister Responsible for Statistics Canada, the Heritage Canada Minister, the Chief Statistician and local MPs for the release of the 1911 Census records.
  
• Over 2,500 letters, e-mails and petitions have been received by Statistics Canada on this matter. A sample of these letters has been made available to Panel members.
  
• Detailed web-sites covering the matter are maintained by various genealogical societies. These have been the source of the form-type letters that Statistics Canada has received.

Response by Minister Responsible for Statistics Canada

• In 1999, Statistics Canada, at the request of Minister Manley, prepared two options for change.
  
• The first option is a retroactive amendment to the Statistics Act to permit the release of the post-1901 Censuses, 92 years following the census.
• The second option involves a legislative change for the 2001 Census and all subsequent censuses so that some number of years following a census (92, 100, or other), personal census records would be made available to the public.

Response by Members of the House of Commons and the Senate

Mac Harb and Jason Kenney

• On October 13, 1999, Jason Kenney introduced a Motion in the House of Commons (M-160) asking that the government take all necessary steps to release the 1911 Census records once they have been deposited in the National Archives in 2003.
  
• On November 5, 1999, Mac Harb introduced a private members bill (C-312) which proposes to amend the National Archives Act and the Statistics Act to permit the release of historical census information by transferring to the National Archives the 1906 and all subsequent censuses. All future censuses are to be transferred to the National Archives five years following the census. Census records would be available to the public 92 years following a census.

Senator Lorna Milne

• On December 15, 1999, Senator Lorna Milne tabled a legislative amendment in the Senate (Bill S-15). Second reading of this Bill is expected in early February 2000, after which time it could go to committee:
  
• proposes that Statistics Canada would transfer individual census records for all census years to the National Archives 30 years after a census;
• public access after 92 years;
• Canadians must inform the National Archivist in the 92^nd year following a census if they wish to have their census information removed prior to public access;
• at that time they must provide reasons for wishing to deny public access.
• the National Archivist:
  
• must agree that the disclosure of personal information would constitute an unwarranted invasion of the privacy of the individual to whom the information relates,
• and be able to locate the individual record
• and remove it from the microfilm copy made available to the public.

Public opinion

• The voice of the ordinary Canadian has not been heard.
  
• We have commissioned an opinion poll designed to shed light on:
  
• the balance between personal privacy and public access to historical census information;
• and the reaction of Canadians to a retroactive amendment.

Concluding comments

Two collective goods in conflict

• Privacy and access to historical documents.

Seeking guidance from the Panel

• With respect to the 1906 to 1916 Censuses:
  
• Are there legal and ethical means to provide public access to these censuses without a retroactive amendment?
  
• With respect to the 1921 and subsequent censuses:
  
• Are there valid legal barriers to public access after some period of time?
• If the answer to the previous question is affirmative, considerations relating to a retroactive amendment of the Statistics Act.
• Considerations relating to the 2001 Census.
• Considerations relating to subsequent censuses.
  (Note: the distinction between the 2001 and subsequent censuses arises as a result of timing considerations).
• In considering the trade-off between competing public goods, the potential impact on data quality of future censuses should also be considered should the public opinion poll provide grounds for concern.

A retroactive amendment

• Recommend to the Panel that Mme Jocelyne Bourgon, former Clerk of the Privy Council, would provide a valuable perspective to the Panel members on governance issues, specifically about a retroactive amendment.

Effective date of "future census"

• Planning for a census begins well in advance of Census Day. For example, printing of census questionnaires takes place up to a year before the census occurs. It may be too late in the 2001 Census cycle to introduce a change in the confidentiality guarantee given to all respondents. Census 2006 is likely to be the earliest opportunity to make such a change.
  
• Statistics Canada is very concerned that response rates and the quality of respondents' data would decline if the absolute guarantee of confidentiality was to be weakened.

Confidentiality of data and the trust Canadians have in Statistics Canada

• In setting out its arguments in favour of retroactive release, the Panel might wish to advise Statistics Canada on measures to take to ensure that public confidence in the Agency is not diminished. Such confidence is the cornerstone for the success of the Agency.