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Article Published March 24, 2000, Vol. IV No. 07
POST-1901 CENSUS NEWS (Canada)
By: Gordon A. Watts, email@example.com
My Submission to Expert Panel Continued...
(click here for part 1)
Myth Number Three
The Census of 1906 was the first in which Rules and Regulations relating to Census and Statistics were subject to the "force of law". The process by which secrecy of name-identifiable Census records coming under the "force of law" was a deliberate, well thought out result of the legislative process.
In fact, confidentiality that had the force of law appeared in statutes as early as 1879, and perhaps earlier. It did not, however, relate to individual identifiable persons enumerated in Census, but to agriculture, commercial, criminal, and, in particular manufactures, Statistics.
A great deal of research was done in order to find reasons for making secrecy of personal name-identifiable information subject to law where previously it had not been. Attempts to find where this issue had been debated in the House of Commons met with failure.
In the Debates of the House of Commons for 1906 no reference was found to either Census or Statistics, either in the volumes of debate themselves, or the Analytical Index to the Debates. The Debates for 1905 were a different story. Hansard for 1905 contained considerable debate in reference to Bill 5 - an Act respecting the Census and Statistics presented by the Hon. Sydney Fisher, Minister of Agriculture in 1905. This Bill, with one amendment and some rearrangement of clauses, appears in the Revised Statutes of Canada for 1906 as Chapter 68, and it is the Statute under which the 1906, 1911, and 1916 Census were taken. It is under this Statute, Statistics Canada states, personal name-identifiable information became secret and subject of the force of law.
No direct debate regarding privacy, confidentiality, or secrecy relating to information regarding identifiable individuals was found in the Debates. There was no mention of these issues within the 1905/1906 Census and Statistics Acts. What they contained was a clause that stated:
No Act regarding Census or Statistics actually had a clause regarding "Secrecy" until the Statistics Act (Chapter 43) of 1918. The clause on which Statistics Canada bases their position of non-disclosure of identifiable information from Census is contained in the "Instructions to Commissioners and Enumerators" proclamed by the Governor General in Council and published in the Canada Gazette of Monday 21 May 1906. This clause states:
In researching the various statutes, regulations and instructions relating to Census, and Debates found in Hansard I have come to the conclusion that applying the force of law to the Instructions regarding name-identifiable records and secrecy was not a planned action, but rather was a coincidental side effect.
The 1905 Debates contained no reference to confidentiality or secrecy of personal name-identifiable information in Census. The only reference to confidentiality or secrecy found was in reference to industrial and manufacturing statistics. These references were not in direct debate about confidentiality but as side issues re: compelling manufacturing, and industrial interests to fill out and return forms mailed to them for statistical information. Those involved in these interests would naturally be concerned about the possibility of competitors having access to current information regarding their operations. ("Current" in this regard seems relative as it appears that at that time it took 5 or 6 years to compile and publish the statistical information gathered in Census.) In the Debates, references regarding industrial and manufacturing Statistics would lead one to believe that confidentiality of these was nothing new, but a position of long standing.
The 1905 Bill (No. 5) sought to accomplish a number of things, one of which was to establish a permanent office from which to collect Census and Statistical information. It also sought to amalgamate three Acts from the Revised Statutes of Canada for 1886; Chapter 58 - Census, Chapter 59 - Statistics, and Chapter 60 - Criminal Statistics. Chapters 58 and 59 both contained clauses giving the Minister the authority to make rules, regulations, etc., while Chapter 60 makes no mention of this. The difference between Chapters 58 and 59 is that Chapter 59 - Statistics includes the reference to those rules and regulations having the force of law, while Chapter 58 - Census does not. It appears that in the Statutes of 1886, secrecy regarding name-identifiable information in CENSUS was not the same concern as was the fear of those involved in industrial or manufacturing interests that their STATISTICS would be made available to their competition. No clause in any Statute prior to 1905, when applied to individual Census as opposed to Statistics, made any reference to force of law.
The Minister in 1905 sought the authority to collect various statistical information throughout the Dominion in years between the decennial Census years. He was proposing that for the most part these statistics would be collected by mailing forms and schedules to those from whom the information was required, rather than using enumerators to personally collect the information. Previous statutes gave the Minister the power of compulsion only for the decennial Census and he wanted that power continuously so that those Manufactures to whom the forms and schedules had been sent would be required by law to fill them out and return them. This then, was a major reason for wanting the force of law to apply to regulations.
It is interesting to note that while part of the purpose of Bill 5 (1906) was to amalgamate the separate Chapters 58, 59 and 60 of the 1886 Revised Statues, Chapters 58 and 59 had in fact separated Census and Statistics which had been together in the previous Statute, Chapter 21. -- An Act Respecting Census and Statistics (1879).
Chapter 21 (1879) contains two clauses giving the Minister the authority to make rules and regulations (instructions). The first reads as follows: (italics mine)
In the Regulations for the Census of 1911 however, in addition to "Clause 23. Secrecy of Census information provided for.", there is a much stronger clause regarding Secrecy under the heading of "MANUFACTURES, SCHEDULE No. 9". This reads as follows: (italics mine)
It is interesting to note that in all Statutes prior to 1905, clauses pertaining to Statistics required Regulations and Instructions to be published in the Canada Gazette and made reference to such Regulations and Instructions having the force of law. Regulations and Instructions pertaining to Census were not required to be published, nor did Statute clauses referring to them require them to be subject to the force of law. In the Statutes prior to 1905, whether or not Census and Statistics were contained in the same, or in separate Statutes, it is obvious that they were viewed as separate entities, each requiring a different degree of confidentiality. With the merging of Chapters 58, 59, and 60, wording giving the Regulations the force of law was included for reasons given above and never with the conscious intention to prevent release of personal name-identifiable records in the far future. Wording from previous Statutes relating to Statistics migrated to Bill 5 (1905), as did wording of Regulations and Instructions. Census, being included in the new Statute got caught by that migration of clauses. The previous clause relating to Census did not migrate. The confidentiality of personal name-identifiable records from CENSUS was therefore coincidentally brought under the same umbrella as was that of Manufactures STATISTICS.
It is ironic that the Statistics Act of 1918, while establishing the Dominion Bureau of Statistics, and separating the Census of Industry from that of the Census of Population and Agriculture, should for the first time, include a clause under the heading SECRECY. The main reason for secrecy regarding a combined Population and Manufactures census was no longer a part of it.
Myth Number Four
Release of name-identifiable information in the distant future was a reason for confidentiality concerns of respondents to Census.
In fact, it is unlikely that at the beginning of the Twentieth Century many citizens of Canada gave much, if any, thought to the possibility that personal information they provided to Census might be released for historical or genealogical research seventy-five or one hundred years in the future. They had to work too hard, making a living for themselves and their families to give much thought to this. If, at that time, records from any distant past Census had been made publicly available, it is likely that very few were aware of that fact. Access to such records, if available, would have been much more difficult than it is today.
Were citizens of Canada at the turn of the Twentieth Century concerned about personal privacy? Quite likely, however all indications point to the likelihood that their concerns about this were contemporary, rather than futuristic. To my knowledge, in 1906, no release of any Census had yet taken place. Certainly no Census of Canada had yet been released. That of 1871 would not be released until after 1941, many years in the future.
Then, as now, there was an inherent distrust of Government, and what their intentions were regarding information provided by respondents to Census. Much of that distrust had to do with the possibility that information provided to Census would be used against respondents by other departments of the Government.
Evidence that privacy concerns of respondents of the day were contemporary is reflected in the Instructions to Commissioners and Enumerators. As noted in the response to Myth Number Two, these Instructions for each and every Census from 1901 until at least 1946 contained, within the Clause regarding Secrecy Provided For, the phrase
A census is not taken for purposes of taxation, as, unfortunately, many persons imagine. None of the information contained in it could be turned to such account. The results it exhibits, like those of any other statistical enquiries, are directly connected with the science of government; which pre-supposes a general knowledge of the wants and capabilities, the defects and advantages, numerically presented, of the population and the country."
Further evidence that respondents to Census were concerned about confidentiality in the present time is contained in a Proclamation directing the Census of 1931 and published in the Canada Gazette of 23 May 1931. This Proclamation contains the statement:
All Census Enumerators have taken an oath of secrecy.
By Act of Parliament, no information about individual Canadians recorded in the Census may be disclosed to other government agencies, such as income tax, national defence, etc., or to any private organization."
As indicated above, people, then and now, have an inherent distrust of Government and what they do with information provided them. As an illustration of that continuing distrust, I copy the following extract from Debates of the Senate (Hansard) for Thursday 18 February 1999. Privacy Commissioner Bruce Phillips had just presented his Annual Report to the Senate, and was answering questions regarding it. The extract states: (italics are mine)
…………..It is my understanding that, under section 72(1) of the Privacy Act, all heads of the various government agencies have an obligation to submit reports to you as to how they are complying with the act. In your report, which is the subject of this Committee of the Whole, you present a table on page 48 of the top 10 departments by complaints that you have received. According to that table, from Human Resources Development Canada there were 671 privacy complaints and 356 from Revenue Canada. The number of complaints from all the other agencies drops way down to 20, 40, 19, et cetera.
Based upon what you tell us in that table, you are in constant communication with Revenue Canada and Human Resources Development Canada. What is the problem? Mr. Phillips: First let me say, senator, that I do not know whether we have an inside man at the Senate or you have an inside man in my office, but in any case it is very useful.
Yes, that very high number of complaints from those two departments relates to one particular issue, namely, the data match in which Revenue Canada supplied the Customs forms from returning travellers to HRDC for the purpose of matching up against unemployment insurance claimant lists, in order to find people who were out of the country while receiving benefits. That particular issue has triggered one of the largest body of complaints we have ever had on a single problem."
Once again, the extract above illustrates that privacy concerns of the people of Canada are contemporary, not futuristic. While more difficult to do in the early part of the Twentieth Century than it is today, cross matching of information was the major concern of respondents to Census. Information being cross matched between government departments, such as that mentioned above, would certainly be detrimental to the individual in contemporary terms, but it is difficult, if not impossible, to visualize how it could do harm to someone 92 years in the future. It is even more difficult to visualize that information being harmful to someone who has been long deceased.
Something of note regarding the Annual Report of the Privacy Commissioner is the fact that it shows, for the period covered by that report, Statistics Canada had a total of only twenty complaints investigated. Of those twenty complaints, four were considered well founded; one well founded and resolved; eight were not well founded; six were resolved; and one was settled. While specifics of the complaints were not given, there is no indication that any complaint had to do with the release of personal name-identifiable information from Census after 92 years.
Specific questions were asked of Statistics Canada and the National Archives about complaints regarding release of personal name-identifiable information from Census, 92 years after collection. In responding to these questions both Louise Desramaux of Statistics Canada, and Marta Khan of the National Archives, indicated that there had never been a complaint in this regard. Copies of the correspondence regarding this appears elsewhere in this document.
The experience in the United States in this regard has been similar to that of ourselves.
MYTH NUMBER FIVE
A major intent of early Census legislation was to ensure that Schedules of Census containing name-identifiable information would never be available for future historical or genealogical research.
To the contrary, there is documentary evidence contained within Instructions to Commissioners and Enumerators for successive Census from at least 1901 to 1941 that it has always been the intent that Schedules for Census should be deposited in the National Archives and to be made available for historical research at some point in the future. The following extracts have been taken from the Instructions issued for the Census of 1901. Clauses identical, or nearly identical, to clauses 15, 31 and 33 below were contained within Instructions for successive Census up to at least 1941. The same applies to clause 30 below, up to 1921. The statements emphasized by italics (mine) have remained constant throughout Instructions for all of these Census.
30. Grouping of Townships or parishes. In some sparsely settled regions several townships or parishes may be grouped to form one polling subdivision or unit of enumeration assigned to one enumerator, and where this occurs the name of each township or parish should be entered in the blank line. But in every such case the name of each township or parish should also be written by the enumerator on the left hand margin of the sheet as required in No. 15 of these Instructions in order that the Census of each may be kept separate and distinct.
31. In the case of united townships. Where two or more townships or parishes are united to form one municipality the same instruction should be followed for the purpose of future reference and comparison when each one of such townships or parishes may become organized as a distinct municipality. 33. Clear and legible records. The enumerator is required to make all entries on the schedules in ink of good quality, and every name, word, figure or mark should be clear and legible. If a schedule cannot be read, or if the entries are made with a poor quality of ink, or in pencil, or if they are blurred or blotted, the work of the enumerator may be wholly wasted. The Census is intended to be a permanent record, and its schedules will be stored in the Archives of the Dominion. See Instruction No. 52.
The coincidental merging of clauses from Chapter 58 - Census (1886), and Chapter 59 - Statistics (1886) that brought Instructions relating to Census under the force of law in Chapter 5 - Census and Statistics (1905) makes no difference to the intent conveyed in the Instructions. The simple fact that these clauses remained within the Instructions relating to Census long past legislation passed in 1905 that gave those Instructions the force of law, should illustrate this conclusively.
If clauses relating to secrecy contained in the Instructions from 1906 have the force of law, so then, do clauses contained in those same Instructions which state that schedules of Census have value as a record for historical use, are intended to be a permanent record, will be stored in the Archives of the Dominion, and will be carefully preserved for future reference. The Secrecy clause cannot be considered in isolation. It must be considered in context, and at the same time as all other clauses in the Instructions. Either all Instructions have the force of law, or none of them do. Statistics Canada cannot pick and choose which of the Instructions they want to have the force of law and which they do not.
Myth Number Six
Without confidentiality that lasts forever, respondents will be reluctant to fill out Census or will not respond truthfully.
Once again, there is no documentation to back up this concern. Statistics Canada is simply speculating that this will happen. When discussion relating to release of Census took place in the United States several years ago, all of the same arguments used by Statistics Canada were used by their counterpart in the US. The end result in the United States has been that they open their Census to the Public 72 years after collection. Not only do they open the Census to the Public, but it is my understanding that they do so with great fanfare and parades to a ribbon cutting. To my knowledge there has been no change in the degree of co-operation of respondents to Census in the US since the opening of Census to the Public.
While Census in Australia has traditionally been destroyed immediately following statistical compilation, changes have been made recently that would allow for retention of the Census schedules. Starting in 2001, Census schedules in Australia will be retained, with release in the 100th year following collection, provided that the respondent checked a box on the schedule allowing that to be done. This is not the choice Genealogists and Historians would like to see for Canada's Census as the end result would be a fragmented and incomplete history. The Australia Bureau of Statistics (ABS) expressed the same concern that respondents would be reluctant to provide full and honest information if the Census schedules were retained and subsequently released to the Public. The Standing Committee of the Australian House of Representatives commissioned to study release of Census records discounted this concern as being unlikely, or of minimal effect. The conclusion reached by this committee reads, in part: (italics mine)
The effects of retaining name-identified information from the census.
7.4 Data quality was the primary focus of the ABS in its arguments to the Committee. ABS concluded that a reduction in data quality of the census would adversely affect users of census data and population estimates, electoral redistribution's and Commonwealth grants processes.
7.5 ABS also concluded that other collections conducted by ABS would be adversely affected. Sample selection and benchmarking of other collections from census data would be affected. A liberalisation of the policy on the retention of name-identified census information could undermine confidence in the community, or in parts of the community, about the confidentiality of other information collected by ABS. This could lead to a rise in non-response rates in these other collections or a decline in the accuracy with which respondents answer the questions.
7.6 ABS cited instances in overseas countries where censuses had been adversely affected by privacy concerns.
7.7 In rebuttal of these arguments, a number of genealogical and academic researchers put the views that there would be no, or only a minimal, effect on the data quality of the census or of other ABS collections because most people would probably continue to complete a census for, and do so accurately, as good public citizens. It was suggested that many people do not understand that name-identified information is not currently kept and that therefore a change in policy would not be likely to adversely affect response rates.
7.8 Indeed, it was suggested that some people would be more likely to complete a census form or to provide accurate information if they knew that name-identified records would be retained for the future.
7.9 It was argued that any possible public concerns about the retention of name-identified census information could be managed by an appropriate public education program at the time of the next census. It was also suggested that the compulsion powers of the Census and Statistics Act 1905 could be used to enforce high response rates even if there were some public resistance to a change in retention policy.
7.10 The committee accepts that there may be some possible risk of a reduction in data quality of the census and of other ABS collections if census forms were retained. This possible risk to data quality might arise, because some people concerned about privacy, might give less accurate or comprehensive responses, or refuse to complete a form. The Committee was not persuaded by the evidence that such an effect would be significant or substantial.
7.11 The Committee has considerable reservations about some evidence presented by ABS from attitudinal surveys conducted on its behalf. The Committee formed the view that attitudinal surveys in general, and these surveys in particular, do not provide a sound basis for judgement. The Committee also believes that influence had been brought to bear by ABS on other government organisations to support its view.
7.12 On balance, the Committee considers that the evidence that data quality of the census and other ABS collections would be adversely affected is not conclusive. The Committee considers that a properly managed and comprehensive public education program, promoting the benefits to the community of form retention for future research, would assist in eliminating any potential reduction in public cooperation with the census because of concerns about privacy. The Committee considers that a legislated closed period of a significant number of years would also reassure the public about the confidentiality of personal information.
Undue Influence of Statistics Canada on Others
In Australia, the House of Representatives Standing Committee on Legal and Constitutional Affairs, in their report on the inquiry into the treatment of name-identified census forms, expressed concerns regarding what they considered the undue influence of the Australian Bureau of Statistics (ABS) upon the opinions and testimony given by some government agencies. In their report Saving Our Census and preserving our history (May 1998), they stated: (italics reflect emphasis of the Committee)
3.105 The Committee formed the impression that the submissions from these agencies were drafted principally at the impetus of a letter sent to them by ABS highlighting its fears that data quality of the census would decline. The Committee noted that many of the submissions used expressions like those contained in the ABS letter. While a similar practice was apparent to a greater extent amongst genealogical associations, the Committee was concerned that what it regards as virtually solicitation and collusion should occur amongst government agencies.
3.106 The Committee was also concerned that DEETYA did not initially declare that it had used the services of an outposted ABS officer to prepare its submission. The Committee considered that the submission had been influenced by the views of ABS. In responding to these concerns, DEETYA stated that the views expressed were its own. Nonetheless, the Committee questions the independence of DEETYA's expressed views.
3.107 The Committee also had some concerns about the independence of the ASAC from ABS. The Committee observed that ASAC is based in the same offices as ABS and that its secretariat is drawn from officers of ABS. ASAC's chairman, Mr. John Macleod, advised the Committee that ASAC is quite independent. Nonetheless, the Committee holds reservations about it's impartiality.
3.108 The Committee's final conclusions are discussed in Chapter 7 of this report.
Among others, this particular information sheet has been quoted verbatim, both partially, and in its entirety, in letters and email sent by many Members of Parliament to constituents who have petitioned them for release of Historic Census records. Obviously those MPs seeking information from Statistics Canada accepted what they were told without question. Accepting this without question, they passed on that information and in so doing perpetuated the MYTHS regarding "confidentiality in perpetuity", "an explicit guarantee of indefinite confidentiality that was promised to Canadians when the data were collected", and "release of individual census records is explicitly prohibited by law for all censuses following 1901". As evidence of what I say, I can, on request, produce a number of letters and e-mail sent by MPs to their constituents..
Privacy Commissioner Bruce Phillips, and his staff, have obviously bought into what Statistics Canada have promoted, without questioning the veracity of what they were told regarding the promise and never-ending confidentiality. Letters from Brian Foran, Director - Issues Management & Assessment, on behalf of Privacy Commissioner Bruce Phillips, widely quote information provided by Statistics Canada. His letters frequently use phrases such as "it is the position of Statistics Canada", "according to the agency" (i.e. Statistics Canada), "Statistics Canada has indicated", "Statistics Canada has consistently interpreted", and "Statistics Canada states". In an email sent to Mrs. Muriel M. Davidson, dated 24 February 2000, Mr. Foran directly quoted the above named document in stating:
The key word in the statement above, aside from the reference to the promise, is "apparently." Statistics Canada's position is based on a number of legal opinions that to date have not been tested in a court of law. Opinions that had a variety of reasons for reaching the conclusions they did, and that in fact differ as to when they state secrecy of name-identified records became a factor. Opinions that considered only one clause of regulations that existed prior to the statute that gave them the force of law, rather than all clauses of those regulations. Clauses which state that schedules of Census have value as a record for historical use, are intended to be a permanent record, will be stored in the Archives of the Dominion, and will be carefully preserved for future reference.
Has Statistics Canada exerted undue influence on the opinion and position of other Government departments, and many Members of Parliament? The answer is a resounding YES!!