The Federal Census and the 72-year rule

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Census Records: The 72-Year Rule

January 20, 2022 By Jessie Kratz, Posted In CensusNational Archives History

REPOSTED from https://prologue.blogs.archives.gov/2022/01/20/census-records-the-72-year-rule/

On April 1, 2022, the National Archives will open the 1950 Census. For more information on the records release, visit the National Archives website.

Shortly after the National Archives was established, the Archivist of the United States made an agreement with the Director of the Bureau of the Census to acquire the decennial census records from 1790 through 1870. In 1942, the Census Bureau transferred the 1790–1870 census schedules to the National Archives, and the Archives made them available for research shortly thereafter.

  • National Archives Press Release on the accession of the 1790-1870 Census Schedules, 1942, page 1. (Records of the National Archives)

The issue of public availability for future census records was unresolved when Congress passed the 1950 Federal Records Act. The legislation imposed a 50-year limit on restricting access to executive agency records unless the Archivist determined they should be closed for a longer period. When the act was working its way through Congress, then-Archivist Wayne Grover testified that census records were among the types of records that could be restricted beyond 50 years, but the records would eventually be made available to researchers and would not be restricted in perpetuity. Because the Federal Records Act took precedence over earlier laws, the National Archives was authorized to open census records when they became 50 years old.

In recognition that census records may require a longer restriction period, on October 10, 1952, Roy V. Peel, the Director of the Bureau of the Census, and Wayne Grover, Archivist of the United States, made an agreement to put in place a 72-year period of closure for population census records transferred to National Archives. Per the agreement, the Archives made available to researchers the 1880 census records in 1952 and what survived of the 1890 census records in 1962 (a 1921 fire damaged or destroyed most of the 1890 census population schedules).

Then in 1972, just before the National Archives was to release the 1900 Census records, the Bureau of the Census took the position that the 1952 agreement to open records after 72 years was invalid because it conflicted with Title 13, Section 9 of the U.S. Code, which required the safeguarding of census records obtained under a promise of confidentiality. The Bureau of the Census took this to mean that access to census records should be restricted forever.

The 1900 Census records release was therefore delayed until the Department of Justice could decide whether the Federal Records Act took precedence over Title 13. On June 14, 1973, the Attorney General decided the records could be opened, and in late 1973 the National Archives opened the 1900 census records to qualified researchers. 

The records, however, were released with restrictions—access was limited to approved historical, legal, or genealogical researchers; the research had to be conducted at a National Archives facility; and reproductions were prohibited with few exceptions. After input from the research community, in 1977 the National Archives removed all restrictions on the 1900 Census records and allowed the reproduction of entire rolls of census microfilm for any public and research institution.

In the 1970s, the Archives was attempting to ease limitations on public access to some of its holdings, including census records transferred to the National Archives. The Census Bureau, however, supported restricting access to archival census records and, in testimony before Congress, indicated that before the National Archives made census records available to the public, conditions on access should be adopted that were consistent with the principle of informed consent. They argued that population census records were unique among the records permanently preserved in the National Archives because they contain names, addresses, and detailed personal information for all residents of the United States enumerated in each population census, and they were obtained by the federal government under penalty of law for refusal or failure to answer the questions.

In 1978 Congress settled the disagreement between the two agencies when they codified the 1952 agreement between the Archivist and the Director of the Bureau of the Census. The legislation (92 Stat. 915; Public Law 95-416; October 5, 1978) required that the release of any personally identifiable information from records of the Census Bureau should be governed by the October 10, 1952, agreement between the Archivist and the Director of the Bureau of the Census, except for the individual named on the record or their legal heir. Any changes to that agreement must be agreed to by both the Archives and Census Bureau, and published in the Federal Register. 

Since the agreement restricted access to census records for 72 years, it became known as “72-Year Rule,” which still governs the release of census records to this day. This is why the National Archives isn’t releasing the 1950 Census records until April 2022—72 years after the census was taken.