CENSUS 2022: THE RIGHT TO PRIVACY: HOW FAR IS TOO FAR?

We are reposting our post of 12th March and the submission we drafted challenging Census 2022 that people can adapt and send to the CSO, TDS and the Data Protection Commissioner. Note that a separate email should be sent to the Data Protection Commissioner. We have addressed, amongst other things, the legal basis for the new question at H5 ‘Of which bedrooms’in this submission and requested a response before the Census takes place on 3rd April.

To: NSB Secretary

c\o Central Statistics Office By email to nsb@cso.ie

dpo@cso.ie

To: The Central Statistics Office

By email to census@cso.ie and cro@cso.ie

To: Minister/ Deputy (insert name and email address)

RE: S.I. NO. 637/2020 – STATISTICS (CENSUS OF POPULATION) ORDER 2020

I am writing to you as a citizen of Ireland in relation to the CSO’S CENSUS 2022, which I consider to include questions which are in breach of my fundamental right to privacy. I also object and do not consent to any person having access to my home for the purpose of accessing information demanded in the Census form.

I would request that the issues I have raised are addressed before the Census takes place on 3rd April.

I refer to the above Order which has been made by the Taoiseach “for the purpose of giving full effect to Regulation (EC) No. 763/2008 of the European Parliament and of the Council of 9 July 2008”.

EC 763/2008 directs the collection of Census Data on the following basis:

“The Commission (Eurostat) needs to be in possession of sufficiently reliable, detailed and comparable data on the population and housing, in order to enable the Community to fulfil the tasks assigned to it, in particular by Articles 2 and 3 of the Treaty. Sufficient comparability must be ensured at Community level as regards methodology, definitions and the programme of the statistical data and the metadata.

Periodic statistical data on the population and the main family, social, economic and housing characteristics of persons are necessary for the study and definition of regional, social and environmental policies affecting particular sectors of the Community. In particular, there is a need to collect detailed information on housing in support of various Community activities, such as the promotion of social inclusion and the monitoring of social cohesion at regional level, or the protection of the environment and the promotion of energy efficiency.”

It is highly questionable as to what degree Census statistics have any influence over national or EU policy, with ever deteriorating services and infrastructures in many rural communities. It is somewhat shocking that in 2022 some rural towns in Ireland have inadequate health care, sewerage systems, roads and services. Many rural towns have also no access to a Bank.

It is also noteworthy that the 2022 Census will not capture an accurate statistical count of ethnicity in Ireland. This is because it has been announced by the Government that around 100,000 refugees from Ukraine will arrive here within a relatively short period of time. Under the Government published Temporary Protection rules derived from an EU Directive, the residence status of the refugees will be reviewed after one year.

The influx of refugees will therefore significantly alter the demographics of Ireland which will not be reflected in the information provided on Census night.

The demand for personal information has, therefore, not been objectively justified by the Government in terms of promotion of social inclusion and cohesion and the rights, interests and wellbeing of its people, on whose behalf it is lawfully bound to act, as its primary consideration.

It is reasonable for one to therefore question how Census results from previous years have influenced Governmental social and housing policy. For example, On 24th June 2021 it was confirmed by the Minister for Housing that 16,832 of the 61,880 persons on the local authority housing waiting lists in Ireland had been waiting for more than seven years. It is unclear how the statistics collected from Census 2016 has assisted the Government to tackle the social housing issue.

One can understand perhaps the basis for a brief census form seeking details of the names, ages and nationality or first language of residents, employment status, or confirmation as to whether or not the housing facilities are deemed adequate for the number of residents in the case of public housing. Perhaps a section for voluntary information such as the length of residence or past foreign residencies would also be acceptable.

Recent Census forms, however, appear to have become increasingly intrusive and people may have legitimate concerns about the rationale and reasoning for such collection of statistics in terms of surveillance rather than directing infrastructural and social policy.

The personal information required is extensive and includes personal questions on childcare and the private daily life of the family, the number and usage of rooms in people’s homes, who is staying there on a particular date and their relationship to the household, what internet devices are used by householders and details of personal medical health data protected by GDPR, including whether or not a person has “an intellectual disability, a difficulty with learning, remembering or concentrating” or “a psychological or emotional condition or a mental health issue”, among others.

The Data Protection Impact Assessment published by the Central Statistics Office states that the Census complies with Article 6 and 9 of the General Data Protection Regulation 2018. It is highly questionable, however, whether or not each and every question on the Census 2022 Form is necessary as the Government have not demonstrated the legitimate aim has been met.

The Government is lawfully bound to respect and uphold the citizen’s right to privacy with regard to any and all questions raised, which are excessive and veer far more towards government surveillance than a government exercise which is allegedly in the interests of its citizens.

The right of privacy is now well established in Irish Constitutional Law. Its existence has been implied by the courts from several textual sources including Article 41 (the Family) and Article 40.3.1. (unenumerated rights of the person).

It was felt necessary by the Supreme Court in McGee v. Attorney General [1984] I.R. 36 and its progeny to imply privacy into Article 41 in order to advance the interests of the family and its members and to more fully honour the social functions it serves.

The inviolability of the dwelling as protected by the Constitution (Article 40.5) forms an added element of the overall privacy “shield”. This was constitutionalised under Article 40, which protects the fundamental rights of the person. Hence, although the protection afforded by the right attaches to a dwelling, it primarily avails persons who inhabit or simply visit dwellings. Such persons need not have any property interest in a particular dwelling to benefit from this right. This points to a presumption of a very strong protection of privacy within the confines of a “private dwelling”.

It is arguable that this right has been violated.

Article 5.4. of the European Treaty states:

“Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.”

Article 3.5. states:

“In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the

sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.”

Article 12 of the UN Charter states:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

I refer also to the International Covenant on Civil and Political Rights: Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

It is time that the Government re-examines the level and detail of information required in the Census form, and consider the legality of demanding the completion of such a detailed Census form, particularly under threat of sanction or prosecution. In particular, Section 29 of the Statistics Act 1993, under which an enumerator can enter a dwelling for the purposes of deliver or collection of the Census appears to be a highly excessive power. A person is expected to consent to the invasion of privacy by a random person appointed by a government office for the delivery or collection of the Census or other notices. This in itself represents a breach of privacy:

29.—An officer of statistics may at all reasonable times, on production of his certificate of appointment if demanded, enter any premises for the purposes of—

(a) delivering a notice under section 26 of this Act, or

(b) delivering or collecting forms, questionnaires, records or information, or

(c) making any such inquiries as he is authorised to make under this Act.

What is striking about this provision is the expectation that citizens will agree, without question, that an enumerator upon production of his certificate can enter their home for the purpose of delivering or collecting the Census, serving notices or making inquiries. It is a particularly anomalous situation whereby after nearly two years of restrictive public health measures on visiting a person’s dwelling, it is now considered acceptable that a person will open their home to a stranger.

As revered Justice of the Supreme Court, Hardiman J. observed in The People v. O’Brien [2012] IECCA 68:

“….Article 40.5 by guaranteeing the “inviolability” of the dwelling reflects long standing constitutional traditions in both common law and civil law jurisdictions, features of which were stressed in both Damache and Cunningham respectively. This constitutional guarantee presupposes that in a free society the dwelling is set apart as a place of repose from the cares of the world. In so doing, Article 40.5 complements and re-inforces other constitutional guarantees and values, such as assuring the dignity of the individual (as per the Preamble to the Constitution), the protection of the person (Article 40.3.2), the protection of family life (Article 41) and the education and protection of children (Article 42). Article 40.5 thereby assures the citizen that his or her privacy, person and security will be protected against all comers, save in the exceptional circumstances presupposed by the saver to this guarantee.”

I refer also to the Central Statistics Office Data Transparency & Protection Statement. Specifically, I refer to the section entitled ‘Do the enumerators collect any other data?’ which states:

‘Enumerators will capture some personal information at the doorstep, such as the householders name and contact number – this is to facilitate the most convenient time to collect the census form.

The enumerator will also capture the name, sex, age and citizenship of all members of the household where they indicate that they will be away on Census night.

The data is entered into a specially developed application on their CSO smartphone and is sent to a secure CSO database. This data is secure and the name and contact phone number is used only as an aid to the enumerator to deliver and collect census forms or to help householder with census queries. Personal data is deleted three months after the census field operation is completed. All phones will be forensically wiped at the end of the operation’

I note that the collection of such personal data by the Enumerators includes householders name and contact number and the name, sex, age and citizenship of all members of the household where they indicate that they will be away on Census night, will be entered into a CSO smartphone app and database.

I refer you to the CSO Statement on Confidentiality (Confidentiality – CSO – Central Statistics Office) as published online that states:

‘The names of individuals will not be entered onto any computer database’

The CSO Confidentiality Statement as published online, therefore, conflicts with the collection and processing of personal data by Enumerators to enter on a smartphone app and database.

Under Article 35(4) of the General Data Protection Regulation, 2018 (‘GDPR’) the CSO is under a statutory duty to conduct a Data Protection Impact Assessment (‘DPIA’)where large scale processing of personal data requiring “suitable and specific measures” to be taken in order to safeguard the fundamental rights and freedoms of individuals.

I trust that you will agree that the processing of personal data collected by the Enumerators and entered into a CSO smartphone app and database falls under the ambit of ‘large scale processing’.

I refer you to the Data Protection Commissioner’s ‘Guide to Data Protection Impact Assessments (DPIAs)’ of October 2019. I have no doubt that upon scrutinising the same you will agree that the CSO must comply with their statutory obligation to conduct a DPIA and demonstrate the legal basis under Article 6 and 9 of the GDPR for processing this personal data by the Enumerator at the door step.

I am deeply concerned that the CSO has not published any DPIA online on the collection and processing of personal data by Enumerators at the doorstep, nor are there any details on the measures that have been put in place to safeguard data subject’s rights and freedoms. There is a lack of published information on the storage of this personal data on the CSO database. It is unclear who has access to the information stored on the database, where will the data be stored and whether any third party, including computing service providers, have access to or share this data.

Serious issues also arise in relation to new questions and the transparency in relation to same:

New question at H5

The 2016 Census at H5. How many rooms do you have for use only by your household?

Number of rooms

The 2022 Census at H5. How many rooms do you have for use only by your household?

Number of rooms

Of which bedrooms

The precise basis for asking this new question on how many bedrooms is unclear. The governing secondary legislation created by the Taoiseach in exercise of his powers conferred by Section 25 of the Statistics Act 1993, makes no reference to the new question on how many bedrooms. The Schedule to S.I. No. 637/2020 – Statistics (Census of Population) Order 2020 lists the general nature of information to be provided for purposes of Census of Population to be conducted in the year 2022.

Article 1 to the Schedule lists the information to be provided regarding housing characteristics and facilities of a private household. Article 1 (d) lists how many rooms but it DOES NOT include the new question on how many bedrooms.

Central Statistics Office ‘Census 2022’ online has a section entitled: ‘New questions for Census 2022’:

‘The new questions are on renewable energy sources, internet access and devices, smoke alarms, smoking, working from home, volunteering, childcare and travelling home from work, school or college. These topics were selected after the public consultation and pilot survey described above.

Many other questions – for example those on religion and long-lasting conditions – have also been changed to varying degrees’

The new questions are listed as H4, H7, H11, Question 18, Question 22, Question 24, Question 30 and Question 37.

There is no mention of the new question at H5: ‘Of which bedrooms’.

The precise legal basis and reason for this new question on how many bedrooms a property contains is, therefore. not clear.

As you are aware, the Thirty-Ninth Amendment of the Constitution (Right to Housing) Bill 2020 reached 2nd Stage in the Oireachtas in June 2021. The Bill proposes to amend the Constitution by inserting text after Section 2 of Article 43 delimiting the right to private property ‘where it is necessary to ensure the common good and to vindicate the said right to housing of all residents in Ireland’.

In view of the proposed amendment to the Constitution on housing rights delimiting the right to private property, it is fundamental that the precise legal basis for this new question, as well as all questions which are a matter of individual privacy,are addressed as a matter of urgency.

It is imperative there is full transparency by Government as to the precise reasons, necessity and proportionality of the collection of a citizen’s private data.

It is necessary that the government now publish all communications with the EU Council with regard to the questions included in the Census, including all new questions

I await hearing from you as a matter of urgency. It is arguable that the Government should suspend the 2022 Census until such time that it has been demonstrated that the questions, and powers of the Enumerator to process and collect data, do not undermine a citizen’s right to privacy under European and national privacy law and the Constitution.

Yours etc

____________

Signed

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