Observations reçues par le Groupe d'étude

Soumission complète

(Soumis en anglais seulement.)

Auteur : Gordon Watts
Envoyé : 1er juin 2001

I welcome the opportunity to express my views, and the views of many Canadians, on a number of aspects of the ATI Act. My submission in this regard will consist of two parts, the first part being my comments in this message. The second part being my submission to the Expert Panel on Access to Historic Census Records, contained in a PDF file attached to this message. A hard copy of my submission, titled "The Myths of Census" was presented to members of the ATIA Review Task Force 26 March 2001. A CD-Rom containing much of the research material for my submission was included with this hard copy.

I freely consent to have my submission to the ATIA Review Task Force, and/or my submission to the Expert Panel, placed on the website of the Access to Information Review Task Force, or to be made public in any other manner.

My name is Gordon A. Watts. I live in Port Coquitlam, BC. I have been retired since 31 October 1996, after working for B. C. Telephone for some 31 years. For the past three years plus, I have been one of the leaders of a campaign on the Internet to regain public access to Historic Census Records.

As someone who had used Access to Information in order to, among other things, hasten the long delayed release of the Report of the Expert Panel on Access to Historic Census Records, I was invited to participate in the first of a number of roundtable discussions held by the ATIA Review Task Force. The roundtable discussion that I attended took place in Ottawa on 26 March 2001. The purpose of these discussions was to review the legislative and administrative aspects of the Access to Information Act. While the actual discussions were conducted under the auspices of an independent body, three members of the ATIA Review Task Force were in attendance as observers.

My main interest in attending these discussions was to further our interest in regaining public access to Historic Census Records. Industry Minister Brian Tobin, in rejecting the Report of the Expert Panel, had stated in a News Release (15 December 2000):

"further broad based consultation with all Canadians is needed. This consultation will take place as part of the already announced administrative and legislative review of the Access to Information and the Privacy Acts."

Because of this statement we reasonably expected that access to Historic Census Records would form part of the agenda of the discussions. In this regard, we were to be disappointed. In fact, there was considerable discussion about this, and the end result was unanimous support by the participants for allowing such access. However, following the discussions we were advised by the members of the ATIA Review Task Force in attendance not to expect much to be said about this issue in their final report. We were advised that a review of, and recommendations regarding, public access to Historic Census Records, did not form any part of their mandate. They had been given no instructions that they were to conduct such a review or to make recommendations regarding access to Census Records.

Both Industry Minister Brian Tobin, and Justice Minister Anne McLellan, have been asked for an explanation, and clarification of any "broad based consultation" with all Canadians relating to public access to Historic Census Records. As of the date of this writing, neither has responded to these requests.

In any case, I will continue here with my comments relating to the ATI Act. As I understand it, this review involves both legislative and administrative aspects of the Access to Information Act. My interest here runs to the legislative side. My major concern is how the Act has been manipulated to prevent transfer of Historic Census Records to the control of the National Archivist.

Before proceeding further, I think it pertinent to review the purpose of the Act, as written within the Act itself. It states (emphasis mine):

2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principals that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

(2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.

1980-81-82-83, c. 111, Sch. I "2".

It is obvious from this statement of purpose that the intent of legislators of the day was that operation of the Government should be as open and as transparent as possible, and should not impose restriction that were not in place previously. I have seen other documents, including statements contained in legal opinions from the Department of Justice to Statistics Canada, that reinforce this intent. From the start, however, Statistics Canada has used the ATI Act to subvert the intentions of the government of the day.

My concerns regarding the Act are not so much what it permits, as what it excludes or exempts. I am concerned about how it has been used in ways it was not intended, to avoid, or delay, disclosure of information requested by the public. My specific concerns in this regard have to do with Section 24 and Schedule II.

In general terms, my feeling is that both Section 24 and Schedule II should be removed from the Act. For certain kinds of information, time limits of varying lengths before release may be justified. The is little information that I can think of that could be justifiably hidden from view until the end of time.

Section 24 of the Act states:

24. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.

Any Act, or Section of an Act, listed in Schedule II is therefore exempted or excluded from the terms of the Act. Of particular interest to me, in this regard, is the exemption of Section 17 of the Statistics Act. This exemption, in large part, is what allows Statistics Canada to withhold Historic Census records from control of the National Archives.

I am an amateur genealogist. On my mother's paternal line I am an eighth generation Canadian. On my father's side I am second generation. In order to seek further information on my ancestry, and to fill out my family history, I seek to regain public access, after a reasonable period, of Historic Census records in Canada.

Census records are likely the single most important source of information for the genealogist who seeks information regarding his or her ancestry. Census records have been collected in what was to become Canada since Intendant jean Talon directed the taking of a Census of New France in 1666. It showed a population of 3,215.

Surviving Census records since that time, up to and including those of 1901, have been deposited in the National Archives. They have been, and remain, publicly accessible to anyone for purposes of research. Change in government normally take place when there are complaints about how things are done. In the 235 years leading up to 1901, and in the 100 years since then, there has never been a single recorded complaint regarding personal information being released through Census Records. Why then, has Statistics Canada fought to deny access to Census records after 1901? What is their motive in doing so?

Since the passing of the Access to Information and Privacy Acts in the early 1980s, Statistics Canada has refused to turn control of Post 1901 Census records over to the National Archives. Their purpose in doing so is to circumvent clauses in the Privacy Act and its Regulations that would allow these records to be released to the public for research, 92 years after collection. What allows them to do this is the fact that Section 17 of the Statistics Act is included in Schedule II of the ATI Act. It is the sole purpose for Section 17 being included in Schedule II.

At the time the Access to Information Act was brought into being there were thirty-three exemptions in Schedule II. One of those was Section 17 of the Statistics Act. As I write this, there are now 54 exemptions in Schedule II. I believe that many Canadians like me, who, when viewing the list of exemptions, tend to wonder "What have they got to hide?"

The Access to Information Act and the Privacy Act were born of the same Bill. They were intended to complement each other. The Privacy Act, and Regulation 6(d) thereof allow personal information from Census records to be transferred to the control of the National Archivist, and subsequently to be released to public access after 92 years. Why then was Section 17 listed in Schedule II? Doing so was an action in direct opposition to the clauses of the Privacy Act. I find it hard to believe that legislators of the day would deliberately, at the same time, create clauses in two Acts the end result of which is the nullification of one of them.

As Section 17 has been in Schedule II since the beginning I must assume that Statistics Canada used some forceful arguments to have it listed there. In my view, and the view of many others, it is not justified. Privacy concerns relating to Census are certainly justified in contemporary terms, however to state that those same concerns are justifiable after 92 years is stretching the point.

In summary, Section 24 and Schedule II must be removed from the Access to Information Act. If they are to remain, then those Acts, or Sections of Acts, that remain in Schedule II, must be subject to justification for the exclusion of exemption or exemption they enjoy. There must be some discretion allowed. There must be an injury test, and there must be some time limitations in place after which the restrictions of Section 24 no longer apply.

Public access to Historic Census is affected by four pieces of legislation, - the Access to Information, Privacy, Statistics, and National Archives Acts. All of these Acts must be considered at the same time in order to fully understand, and resolve this issue.

Thank you.

Gordon A. Watts

Observations reçues par le Groupe d'étude