Annual Report: 2002-2003

During this reporting year, another conflict between the values of privacy and openness came to a head. Statistics Canada has steadfastly resisted allowing genealogical and historical researchers to have access to individual census returns--even very old census returns. The Chief Statistician's professional concern to protect the confidentiality of individual returns was always based on a desire to maintain the public's trust and, hence, ensure public cooperation with the census.

On the other hand, that strong refusal to disclose historical census returns ran counter to the less rigid confidentiality régime for census records set out in the Privacy Act Regulations.

The Privacy Act Regulations (section 6) provide that historical census returns transferred to the National Archives become accessible for research purposes after 92 years have elapsed from the date of the census. Many researchers became frustrated about the Chief Statistician's refusal to transfer census records to the National Archives and, hence, their inability to take advantage of the access régime set out in the Privacy Act Regulations.

In the face of this impasse, several researchers made requests to Statistics Canada, under the Access to Information Act, seeking access to the individual returns for the 1906 census. Upon receiving Statistics Canada's refusal, some 29 complaints were made to the Information Commissioner. In parallel, a researcher launched an action in the Federal Court challenging the Chief Statistician's refusal to transfer the 1906 census records to the National Archives.

The Information Commissioner completed his investigation and determined that Statistics Canada was under a legal obligation to transfer the 1906 census records to the National Archives. He also concluded that the failure to respect the legal obligation could not be asserted as a valid basis for refusing access to these records. Consequently, the Information Commissioner recommended that the 1906 census returns be disclosed to the requesting researchers in the same terms as if they had been transferred to the Archives.

The Chief Statistician refused to comply with this recommendation and, with the consent of the requesters, the Information Commissioner prepared to file applications for review in the Federal Court seeking orders compelling disclosure. On the day the Federal Court applications were to be filed (literally, the originating documents were in the court's registry), the minister responsible for Statistics Canada (the Minister of Industry) announced that the 1906 census records had been transferred to the National Archives and were available, online, to the public.

The minister also announced that he would introduce a Bill in Parliament with amendments to the Statistics Act designed to establish an access régime for post-1906 census records to the present, and for the future. This government initiative resulted from the government's view, on the one hand, that the census data base is a national resource from which researchers should not be barred. On the other hand, the government was also of the view that the existing 92-year rule in the Privacy Act Regulations is not sufficiently sensitive to individual privacy to engender the trust of Canadians necessary to full cooperation with future census surveys.

The new compromise régime was introduced this year in the Senate in the form of Bill S-13. Here is the proposed régime:

For any census between 1910 and present:

1) Public access will be permitted after 112 years.

2) Researchers will be permitted access after 92 years (subject to an undertaking not to disclose some personal information until 112 years have elapsed).

For any census in the future:

1) Public access will be permitted after 92 years but only if the person completing the return has consented to such access.

2) Secrecy of the return will be maintained forever if consent is withheld.

As might be expected, this compromise is highly controversial--especially with respect to the terms of access to future census records. It is the Information Commissioner's view that the compromise scheme contained in Bill S-13 is seriously flawed.

Under existing law, 1911 and 1916 census records are accessible by anyone--in accordance with section 6 of the Privacy Act Regulations--after 92 years from the date of the census. There is no reason to restrict that access now nor to treat these census records any differently from the 1906 census records. There is no evidence of any promise having been made to Canadians that there would be any longer period of secrecy for these records.

For the future, there is no justification for allowing Canadians to throw a blanket of secrecy over census information forever, merely by withholding consent for disclosure after 92 years. This expansion of the zone of secrecy would be unprecedented. As attractive as the notion of up-front consent may be, other personal information held by government--even the most sensitive, such as medical, psychiatric, parole or criminal records--may be kept secret only until 20 years have elapsed after an individual's death. Moreover, the consent provision will result in a severely degraded data base for future researchers. When adopted in Australia, almost 50 percent of respondents refused to give consent for future disclosure.

This consent proposal is a recipe for the serious degradation of the census database as a national research resource. It must be emphasized that there is no evidence indicating that a régime of access to census records after 92 years would jeopardize in any way voluntary participation rates in any future census. The British permit full access after 100 years, the Americans after 72 years; neither jurisdiction has participation rate problems as a result.

Consequently, the Information Commissioner has urged Parliament to drop the consent provision. If, as proposed in Bill S-13, 112 years represents an appropriate period after which the law should deem that privacy interests cease in past census records, then it should also apply for the future. Such a time period is consistent with the Privacy Act's provision that privacy rights survive only until 20 years after the death of an individual.