Greetings All. Privacy Commissioner Bruce Phillips does not appreciate our efforts to obtain access to Post 1901 Census records as evidenced by the following extract from his annual report to the Government. His report frequently refers to the "promise" even though neither he, nor Statistics Canada have been able to produce any documentary evidence that such a "promise" was ever made. His full report is available on the internet at http://www.privcom.gc.ca/english/02_04_08_e.htm Gordon ---------------------------------------- Historical census records Last year we reported on the debate over releasing post-1901 census returns. All censuses in Canada since 1901 have been the subject of a repeated promise--set out first in regulation, then in legislation--that individual returns would not be disclosed to anyone outside Statistics Canada. As a result, Statistics Canada is legally prohibited from releasing the completed census forms to the National Archives. This has angered historians and genealogists seeking access to the information, and they have publicly called for retroactive changes to the law. Any government promise of confidentiality is serious enough, but the one protecting the census is particularly important. Census questions demand personal information. The information gathered through 20th century censuses became steadily more intrusive, but even early in the 1900s some questions--about, for example, education, religion, nationality, race, occupation, and earnings--were intrusive. And the answers revealed information that people would not necessarily choose to make public. Canadians are required to answer census questionnaires and the maximum penalties for failing to comply are severe: fines and imprisonment. Keeping the information confidential, using the information for statistical purposes only and not releasing it in identifiable form are arguably the trade-offs that bolster public acceptance of censuses, and compliance with the law. Despite the clear prohibition on release of the material, the Minister of Industry last year asked Statistics Canada to look at ways in which the legislation might be amended to allow access to individual census returns. Statistics Canada proposed two options: amending the Statistics Act to allow access to the 2001 and all subsequent censuses; or amending the act retroactively to override the confidentiality provisions. The Privacy Commissioner opposed both options; the first because the absence of guaranteed confidentiality risked compromising the census process, and the second because it would break the legal promise Parliament made to Canadians. The Minister's response was to set up an expert panel to examine the issues and make recommendations. The Commissioner appeared before the panel in February 2000. The Commissioner urged the panel to recognize the important social issues of privacy and governance the debate has raised. He pointed out that the question is not whether a "personal" or "individual" interest in privacy should cede to a "public" or "societal" interest in genealogical and historical research. The historians and genealogists who want access to the census materials do not have an exclusive claim to represent the public interest or express a public right. Privacy is also a public right, upon which rest the freedoms and mutual respect fundamental to Canadian society. What was facing the panel was more than a decision about the privacy of the respondents to the 1906 or 1911 census. Its decision will have implications for their privacy certainly, but it will also have an impact on the privacy of all Canadians. A number of important privacy issues are at stake. Most critical is the principle, found in all data protection laws and codes, that personal information should not be used for purposes unrelated to those for which it was collected. Any such unrelated use should depend on the consent of the person who gave up the information. Another issue is the problem of keeping personal information longer than required for its stated and intended use. The very existence of these records, long after their legitimate statistical function has been fulfilled, is an invitation to unrelated uses. This is a typical example of what privacy advocates call "function creep", and highlights the importance of establishing and respecting limits on retention of information. Finally, there is the question of when an individual's privacy rights can be considered extinguished. Some suggest that the privacy rights of those who completed the 1906 and 1911 census returns have somehow vanished. Even assuming that all are dead (which is not necessarily true), this proposition is not self-evident. As a matter of general principle, society recognizes that some rights continue after death; this is the basis on which people are allowed and even encouraged to dictate in their wills how their property is to be distributed after their death. The Privacy Act itself recognizes that information remains "personal" for 20 years after the death of the person concerned. The Commissioner stressed that any proposal to amend the law retroactively should be approached with great caution, lest the result diminish confidence in government promises--not just in specific agencies, but also in government that professes to rule with the consent of the governed. Proponents have presented a retroactive amendment as though it were innocuous. The promise of confidentiality has been described as "a legal technicality in an outdated piece of legislation." The Commissioner, however, reminded the panel that the promise of confidentiality was fundamental to the process of obtaining answers to census questions. Canadians have never been particularly comfortable about the intrusiveness of census questions. The number of inquiries and complaints to the Privacy Commissioner over the years is one indicator of this discomfort. Yet Canada's census response rate is high. Despite the intrusiveness of the questions, the sensitivity of the answers, and their unease with the process, Canadians agree to participate. Part of the reason is that they are coerced. Intrusive questions were, and are, backed by the threat of fines or imprisonment. But governance in Canada does not rest primarily on coercion. Indeed, as generations of Canadian schoolchildren have been encouraged to appreciate, one of the principal points of pride in Canadian society is responsible government that rules with the consent of the governed. At the heart of the census process was not the threat of force but an agreement between government and governed: that intrusive questions would be answered, but that the answers would be protected. To abrogate the promise retroactively risks trivializing that agreement, and all such agreements. The Commissioner also recommended that, if the panel chose not to support the government's promises and Canadians' privacy rights, at the very least it should consider a compromise that would mitigate the impact on privacy and governance. Recognizing that the census returns are of particular interest to historians and genealogists because they are one of the few sources of documentation about Canadians in the early 20th century, the Commissioner suggested determining a date after which genealogists' and historians' objectives could be met without having access to the census materials. Census returns dating before the cut-off could be released to the National Archives. All census returns after that date would be destroyed, once they fulfil their legitimate statistical use. The Commissioner also urged the panel to consider whether "tombstone" data--names, ages, addresses--could be isolated from the more intrusive details, on the principle that government should first try the least intrusive measure that would achieve the objectives and resort to more intrusive measures only when genuinely required. If Parliament amends the Statistics Act to remove confidentiality, the process must be transparent. Statistics Canada must advise Canadians when it conducts the census that it will eventually release the information. If, as Statistics Canada says, confidentiality is one of its most effective ways of securing willing cooperation, then Parliament must find some other way of convincing Canadians to cooperate. The Commissioner also urged the panel to consider Australia's model, which will allow respondents to the 2001 census to choose (by opting in) to have their returns stored and released after 99 years. (Australia currently destroys its census returns.) Finally, the Commissioner observed that retroactive change to the agreement between government and governed undoes the conditions under which Canadians participated in the census. Such a change must be the subject of full Parliamentary debate, with every MP required to consider it and be held publicly accountable. The Commissioner's brief, "The census returns, privacy, and questions of governance," is available from our Office and on our website.