A POSITION PAPER CONCERNING THE RELEASE TO THE PUBLIC VIEW OF
LINE-ITEM INFORMATION FROM CENSUSES AFTER THAT OF 1901.
A submission to the Expert Panel on Access to Historical Census Records
from the Alberta Family Histories Society.
The Alberta Family Histories Society contests the interpretation that Statistics Canada have put on the Census and Statistics Act, 1906, the Statistics Act, 1918, and the similar acts which have followed. Statistics Canada claim that the raw data from the censuses, which give details of
individuals, should not be released to the public following the 1901 census data, which has already been put into the public domain.
Our opposition to this claim is based on two fundamental arguments:
I. It was never the intention of the legislators who wrote these laws that the confidentiality provisions which they included would imply secrecy forever.
II. The interpretation that Statistics Canada suggests runs contrary to the greater good of the citizens of Canada, now and in the future.
These arguments will be developed in greater detail.
I.1. The legislators could not foresee the future secondary value of the census data.
It would have been impossible for the legislators in the first part of the 20th.century to foresee the changes in (a) historical study (b) genealogy (c) genetics which would occur towards the end of the century. However one might have expected that their legalistic minds would have anticipated the continuing value of nominal census records in the process of tracing heirs.
There has been a strong trend in historical scholarship to expand to increasingly include the History of the Common Man. A history that only covers laws and battles, princes, politicians and generals is no longer acceptable in a modern democratic society. This means that the documents that relate to ordinary people (the line-item census is one of the most useful of these) have become much more important than they were in the opening years of the 20th century.
A hundred years ago genealogy was a very arcane topic, studied mainly by descendants of prominent families; it was a subject which commanded little notice, and even less respect. It would be fair to describe the changes to the discipline in the second half of the 20th. century as revolutionary.
Access to records has been dramatically improved, hundreds of books have been written on the subject, genealogical societies have sprung up everywhere, computers and the Internet have greatly facilitated the study of family history, and standards of scholarship have been established and promulgated. But most important of all there has been a democratization of genealogy and a massive increase in the number of people who are actively working in the field. There is at least one major genealogical society in every province of Canada, and a score of local societies.
Maritz Marketing Research Inc. reported in March,1996 on a probability sample poll which they conducted in the U.S.A. Their findings were that 45.1% of the U.S. population have an interest in genealogy, and 7.1% have a great deal of interest in tracing their lineage. Of those interested in genealogy, 12.3% had contacted the Census Bureau to pursue their family history studies. If these figures are projected onto the population of Canada, this suggests that some 13 to 14 million Canadians will be affected by the proposed changes in the treatment of the census data, and 2 to 3 million are very directly threatened by these changes. Some 1 to 2 million will make use of the census for genealogical purposes. This is not a fringe issue.
At the beginning of the 20th. century the study of genetics was in its infancy, and the science of human genetics virtually non-existent. Once again there has been an explosion of knowledge in this field in the last 50 years. It is expected that progress in the understanding of human genetics
will accelerate after the completion of the Human Genome Project in a few years time, and that this will have a considerable impact on the ability of medical geneticists to prevent, mitigate and cure a wide range of diseases.
A knowledge of the medical history of the one's family will become increasingly important in the practical sense. This calls for facilitating the study of family history rather than making it more difficult.
I.2 The legislators did not consider that the need for reasonable confidentiality would imply that the census data should be withheld from the public eye forever.
In our reading of various statutes and regulations that relate to the census, and in the instructions to the enumerators that we have seen, there are references to the need for secrecy, but nowhere does the word "forever" occur.
Furthermore it should be borne in mind that there has been a very long tradition of releasing the census material to the National Archives, after an appropriate waiting period of 92 years. All censuses since the first in Quebec in 1666 have been made available for public examination. It is
likely that the legislators who wrote the various laws and regulations between 1901 and 1911 were well aware of this time-honoured tradition. If it was their intention to change that, why was this not made explicit in the laws and regulations?
Statistics Canada are declining to release the Western Census of 1906 and the National Census of 1911. The legal basis of this refusal is highly questionable.(see attached legal opinion, and the comments of Raynell Andreychuk, a former judge and Senator, to the Senate on 17 Feb. 1999). We have asked Statistics Canada to comment on the remarks of Sen. Andreychuk; they have not done so. What is clear from the instructions to the enumerators is that the census takers of 1906, 1911 and 1916 themselves (this was before the formation of the Dominion Bureau of Statistics in 1918) fully expected that the nominal census data would eventually be released to the National Archives.
Statistics Canada claim that the legislative changes between 1901 and 1918 elevated the proper concern over issues of the confidentiality of census information to the level of what one protagonist called a "covenant between the People of Canada and the Government" that all information given to the census takers would be kept secret forever, and furthermore that this undertaking was an important one, without which the People would not co-operate fully with the census takers. If this were the case, one might expect that the Census Office would have publicized this significant change at the time of the 1911 census. Our examination of the newspaper coverage of this census fails to reveal any evidence of such publicity. We have asked Statistics Canada and Agriculture Canada to show us press releases that support their claim of a "sea change" in their policy at this time; we have been shown none. We have asked them to show us any printed material, intended to be given to householders, that announced the promise of eternal secrecy; we have been shown none. The instructions issued to the enumerators for the 1901 and 1911 censuses do tell them that, should the householder raise the issue of confidentiality, they are to offer "positive assurance" that the census responses will only be used for statistical compilations, but a later section (Article 36) says that the line-item forms will be stored in the Archives of the Dominion. We consider that it is highly significant that the census-takers should mention that the census should be kept as part of the permanent record of the Nation.
In other words there seems to be no evidence to suggest that those involved in the 1911 census, either for framing its legislative basis or for actually organizing the data collection, thought that they were moving from delayed release of the nominative data to banning its release for all eternity. It appears that this is an interpretation that has been put forward at some later date, for reasons at which we can only surmise.
While a stronger case can be made for the legal underpinning of secrecy provisions in the 1921 census, governed by the 1918 Statistics Act, there is still no mention of the word "forever", or any equivalent phrase in that legislation. It should perhaps be borne in mind that 1918 was a bad time for the formulation of a statute that would have such long lasting implications as the Statistics Act. Parliament, faced with a desperate need to mobilize all the human and material resources of the nation in order to win the war, had been obliged for years to pass many laws that increased the power of government and reduced the rights of the man in the street to an extent that would be intolerable for Canadians in peacetime. In this atmosphere it is little wonder that scant attention was given to such apparently nebulous concepts as the importance of history.
II.1 The right to explore the history of the country is important to Canadians.
Statistics Canada insist, quite correctly, that the main purpose of the extremely costly decennial effort to carry out a census in Canada is to collect aggregate statistics which are essential for the proper management of our nation. But it makes poor economic sense not to put this data to a valuable secondary use, provided that doing so would not interfere with the primary objective of the census.
It would be a big mistake to suppose that history, at the macro or the micro level, is of no importance to a country. To dispel this error one has only to look at the huge efforts made by totalitarian regimes to erase or to rewrite history at both these levels. History provides a standard by which to judge the present, and is a way to get a feel for the collective consciousness of a nation. This applies to the history of great people and great events, and just as surely to the history of ordinary folk. The study of the lives of our ancestors is a major force in allowing us to see who we are.
It is a commonplace of genealogy that the "Big Three" when it comes to records are (a) records generated within the family itself, (b) vital records (birth, marriage and death records) and (c) census records. The latter are especially valuable because they treat the four fundamental
facets of genealogical data: names, dates, places and relationships. They provide a snapshot of a family in a certain place at a certain point in time. They are irreplaceable for students of family history and the lives of the common people.
II.2 The promise of eternal secrecy is not necessary in order to conduct a statistically valid census.
Statistics Canada is justifiably proud of its international reputation for the efficiency and skill with which the census is conducted, and for the high quality of the statistical data which is derived from the census. However there is no evidence to support the claim, which they have recently made, that the high level of public co-operation with the Canadian census enumerators, a major factor in the success of the census taking, is due to the promise that they claim to have made to the Canadian public that they would keep the confidential census responses a secret for all time. (as we have said above, there are grave doubts about whether this promise was ever made, still less made in a way that the average citizen might be aware of, which is the critical issue when it comes to judging any "covenant between the People of Canada and the Government")
In the course of correspondence with Statistics Canada they were asked what evidence they could supply to support their claims concerning the importance of the guarantee of eternal secrecy; they supplied no such evidence.
According to the "Report on Acceptance and Use of Records by General Services Administration" written by the U.S. House of Representatives Committee on Government Operations in 1978, a study was commissioned by the U.S.Census Bureau to document the level of concern that would be felt if the census data was released to the public after various periods of time. There was no conclusive evidence that the length of the "black-out period" made any difference at all to the level of concern that people had about the census.
It is interesting to read the 1994-95 Annual Report from the Privacy Commissioner: out of the entire population of Canada in 1991, he received 33 complaints about the Census of that year, and seven of these were not considered to be worth following up - hardly a groundswell of rage over an invasion of privacy. At no point in this detailed report does the Commissioner make reference to complaints concerning the "forever" issue; all of the examples which he gives relate to "here & now" concerns.
We have made formal enquiries with both Statistics Canada and the National Archives of Canada about the complaints that they have received concerning the release of the enumeration-level census data after 92 years; there is no record of either having ever received such a complaint.
We have reviewed the legal cases arising from failure or refusal to complete the census questionnaire. We have been unable to find any cases where the matter at issue was the possibility of researchers unearthing confidential matters after the 92 year waiting period.
It appears from both the contemporary newspaper articles and the instructions to the enumerators that it was the immediate threats to privacy that concerned Canadians in 1906, 1911 and 1916. Worries that the census responses might be shared with the tax authorities and other government departments surface often; concerns about historians and genealogists reading the responses after 92 years have never appeared in the material that we have read.
An information sheet issued by Statistics Canada in 1999 makes some interesting points. "The most important factor contributing to this co-operation [between the public and the census-takers] is the unconditional [our italics] guarantee given to respondents that the information they supply will be protected". The current Statistics Act lays out no less than 6 conditions under which the information may be released. And again, "Canadian citizens have always [our italics] demonstrated unstinted co-operation in providing personal information about themselves when asked to participate in a census...." In other words, even before the changes to the Statistics Act in 1906, Canadians tended to do what the Census Commissioners asked of them. We are a law-abiding and compliant people. Our compliance has nothing to do with imaginary promises of eternal confidentiality.
Not only is there a serious lack of evidence to support the contention that total-secrecy-forever is necessary for Statistics Canada in their admirable exertions to improve the quality of our censuses, but it is quite possible that obdurate insistence on this dubious requirement may in fact be counterproductive. Censuses have never been popular with the mass of citizens; at the best they are tolerated. If the Canadian public were to perceive that they were to continue to be compelled by law to complete their census forms every 10 years, with Statistics Canada selling the aggregate statistics, but suddenly were to be denied access to the old forms themselves, for a purpose much closer to their immediate interests, this could lead to a catastrophic loss of goodwill, and the quality of the data could suffer immeasurably.
II.3 The attitude of other nations to the secondary use of census records is relevant.
The two countries to which Canada traditionally has looked most attentively for legislative models, Great Britain and the United States of America, both have a policy of releasing the line-item census records to the public view after an appropriate waiting period. The U.S.A. releases their census after 70 years, and the U.K after 100 years.
Statistics Canada tend to make much of the Australian policy of being so devoted to secrecy that they destroy their census records after the statistical information has been extracted. It is interesting to note that the Australians are beginning to doubt the wisdom of this policy. For the census of 2001, Australians may indicate that they would like the particulars on their forms to be preserved for future study by scholars.
II.4. The censuses of 1911 and 1921 are especially important in the micro history of Canada.
Those who use the census returns as biographical and historical resources claim that all line-item census records are of unparalleled value to them, but it can be argued that these first two censuses to come under the threat of misguided and overzealous attempts to protect privacy are of particular importance. Canada is a nation of immigrants. The period in between the turn of the century and the outbreak of the Great War saw the highest influx of immigrants in our entire history. Many of these immigrants were poor and illiterate, and came from parts of the world with vital records which were of low standard, or which were destroyed in World War II. To deny the descendants of these people the chance to examine the major set of records which could link their families to their country of origin, and tell them the date of birth of their immigrant ancestors, would amount to historical genocide for a cohort of people whose efforts have built this land. What is more, the burden of this denial will not fall evenly on our citizens; it will be especially felt by those of Ukrainian and Russian descent and those from the countries of Middle and Eastern Europe.
II.5. The census responses belong to the People.
Every 10 years every man, woman and child in Canada agrees to provide information to the census enumerators. On a personal level this is not a rewarding experience. It takes time and concentration to complete the questionnaire, and the questions concern things that most of us would prefer not to discuss. Why to we submit to this? We do it because we feel that this common undertaking is for the common good of the whole nation.
It follows that the completed forms do not belong to Statistics Canada any more than a portrait belongs to the artist rather than the person who commissioned the work and sat for it. They do not belong to the Government taken as a whole. The truth of the matter is that the data on the census forms should be thought of as commonage, a good that is the property of all the People.
Furthermore the great primary value of the census lies in the fact that it is repeated every 10 years, and is universal, so that comparisons can be made and trends identified. It has been so for over 150 years. In other words the Canadian People have agreed to this process over a time span
which exceeds the life of any one person, and it is necessary that they should have done so. It follows then that the census responses should be considered to belong not only to those Canadians who happen to be alive at any one time; they belong to every Canadian who has ever lived, to those living now and to those who will live in the future.
We hold that, as the line-item censuses are held as commonage by the Canadian-People-as-a-historical-entity, their wilful destruction or purloinment would be as illegal as it would be unconscionable.
In Summary:
The Alberta Family Histories Society believe that there was never any intention that the nominative census should be kept hidden forever from the public view, and see no good reason to initiate this policy now. We acknowledge the validity of the Right of Privacy, but feel that this right can be protected by an adequate "black out" period. As far as we can determine the time-honoured 92 Year Rule has served Canadians well; we can see no reason to change it.
Alberta Family Histories Society,
Census Release Committee
February 5, 2000