Annual Report: 2002-2003

Background

As discussed previously in this report, at pages 19 to 21, 30 individuals made complaints under the Act against Statistics Canada concerning the department's refusal to disclose the nominal census returns of the 1906 census of Canada's western provinces. The complainants were amateur and professional historians and genealogists.

Statistics Canada relied on the confidentiality clause (section 17) of the Statistics Canada Act for authority to refuse disclosure. The complainants, on the other hand, argued that the Privacy Act permits disclosure of archived census records after 92 years. The complainants argued that the Chief Statistician could not, simply by refusing to transfer census records to the Archives, extend the 92-year period of secrecy.

Legal Issue

Did the Chief Statistician have lawful authority to refuse to transfer the 1906 census records to the National Archives? That was the central issue in the commissioner's investigation.

Statistics Canada offered a legal and a policy argument. The legal argument involved an interpretation of the instructions for the 1906 census which were approved by the cabinet of the day and published in the Canada Gazette on May 26, 1906. The instructions, according to Statistics Canada, contained an implicit promise that the census results would never be disclosed.

The policy argument advanced by Statistics Canada related to the importance in our society of encouraging voluntary compliance with future census surveys. If the 1906 promise of confidentiality is not respected, according to Statistics Canada, Canadians may be reluctant to trust in the future that the privacy of census records will be protected. Without such trust, Statistics Canada is of the view that participation rates could drop and, thus, put the integrity of future census surveys in jeopardy.

The complainants disputed both points. First, the complainants asserted that there was no legal promise of confidentiality governing the 1906 census. Indeed, the complainants asserted that the 1906 census instructions made it clear that the records would be transferred to Archives and be made available for research purposes.

With respect to the policy argument asserted by Statistics Canada, the complainants pointed out that, in the U.S., census records are made public 72 years after the census; in the U.K., they are disclosed after 100 years. In neither country are there voluntary participation rate problems. In this regard, the complainants maintain that the "secrecy forever" position taken by the Chief Statistician lacked balance by failing to recognize the importance of the census database for historical and genealogical research. One of the complainants put it this way:

"The 1906 special western census represents a national treasure. It was taken at the height of the western settlement boom in the early twentieth century and therefore provides an unrivalled snapshot of the emerging West with its diverse peoples and rapidly expanding wheat economy. Indeed, access to this detailed material will be critical to the many studies and projects celebrating the centennial of Alberta and Saskatchewan in 2005."

With respect to Statistics Canada's legal argument, the commissioner's investigation could find no evidence of a promise having been made to Canadians, prior to the 1906 census, that the nominal results would remain secret forever. However, there were clear words found in the census instructions that the results were to be transferred to the then Dominion Archives and maintained as a permanent record. Thus, in the commissioner's view, the Chief Statistician could not lawfully continue to refuse to transfer the 1906 census records to the National Archives.

With respect to the policy argument, the commissioner agreed that there is an important public interest to be served by maintaining a certain period of secrecy for nominal census returns. Without assurances that answers to census questions will be kept confidential for an extended period of time, participation rates could be negatively affected.

On the other hand, the commissioner also agreed that there is an important public interest to be served by allowing the census database to be open to researchers after sufficient time has passed to overcome the privacy interests of those who completed census forms.

In the commissioner's view, the legal balance between these two interests has already been stuck in the Privacy Act Regulations, which authorizes access to census records transferred to the Archives after 92 years have elapsed from the date of the census.

Consequently, the commissioner found the complaints to be well-founded and recommended that the 1906 nominal census records be disclosed (92 years having elapsed since the date of the census). When the Chief Statistician refused to follow the recommendation, the commissioner sought the consent of the requesters and took steps to have the matter decided by the Federal Court of Canada.

On the very day the court applications were to be filed, January 24, 2003, the Minister of Industry and the Minister of Canadian Heritage decided to disclose the 1906 census in accordance with the Information Commissioner's recommendation. As well, they announced the government's intention to amend the Statistics Canada Act to set the disclosure rules for census records subsequent to 1906. (For the commissioner's view concerning this legislative proposal, see pages 20-21.)

Lessons Learned

When it comes to important databases of information about Canadians, it may not be easy to find a balance between the need to permit access for research purposes and the privacy rights of individuals. However, the difficulty does not justify one-sided solutions. Rather, the path to balance lies in the principle, accepted in the Privacy Act, that the privacy interest diminishes with time, disappearing entirely twenty years after the death of an individual. When it come to census records, the Privacy Act Regulations fix the point where the privacy interest disappears at 92 years after the census information has been collected. For the future, we will see whether or not Parliament continues with this approach to balancing the two interests or whether it decides to give privacy greater prominence by allowing Canadians to give or withhold consent for future research access to census responses.