Information & Ethics Committee on April 1st, 2009

[Ken Rubin]

It's a non-starter. Yes, there are a few good things in there, like extending to Parliament our universal access rights, or bringing in cabinet records—although you won't get any of them as a user. The five-year review could be done—this committee can review the act any day. But his system of administrative records, which are only on orders and extensions, is just going to prolong the agony and make the act more dysfunctional with respect to time extensions and so on.

With respect to his main attitude toward certain users in his recommendations, if we're trying to extend information rights, I don't think it's the right way to go. We're looking at something that people in other countries, and in our own country, should be proud to move forward. The committee dealt with this before. It doesn't have to go back to cherry-picking the bad apples and signing off on a few good ones. You have a plan of action.

I'm giving an alternative plan of action that is a little more progressive. To do this is not impossible. If you, as a committee, put your mind to it, you could soon have something in front of Parliament. But to bring in half measures or counterproductive ones will not do the job. I urge the committee to think twice, because it's going to affect me. My litmus test is how many more records am I and the Canadian public going to get? And if I'm not going to get more under Marleau's, I don't want it.

[The Chair, Liberal, Paul Szabo]

Okay.

[Vincent Gogolek]

Commissioner Marleau, in his remarks to the committee, I believe on March 4, said he supports the open government act that was developed by his predecessor. He does not have a problem with it. FIPA, as an organization, does not see why we need half measures, when so many of Mr. Marleau's recommendations are included in the Reid bill.

[The Chair, Liberal, Paul Szabo]

Okay.

Mr. Poilievre, please.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Thank you for coming here to testify. My questions will centre on two main issues.

To start with, the committee has been told that the complaint system has been overwhelmed by only three individuals, and that 99% of the costs of the program are paid by Canadian taxpayers, not ATIA users through user fees. Given the potential for commercial abuse, would you support a fee structure that is different for frequent users from what it is for people who use the system occasionally and incidentally, to acquire information about themselves, for example?

[Vincent Gogolek]

I think perhaps my previous answer would stand on this, that the B.C. system deals with users who use it for a commercial purpose, not merely frequent users.

We would support a restriction on somebody where it is the equivalent of a court application to strike something for being frivolous and vexatious or for an abuse of process. These do exist. Court cases are occasionally struck out because somebody is abusing the system. There's no reason why the FOI system would be any different, but it would be a very limited and rare case where it is. And it may well be that these.... I'm not familiar with the three cases.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

There are two separate subjects, though. One is the issue of those who use the system frivolously. I actually don't think that is a particularly large problem. There is not really an incentive for people to file frivolous ATIs, because they have to do the work and they don't get paid for it.

What I'm worried about is people who do this as a business. They sell the information that taxpayers pay to extract for them, and they—the data brokers—reap the financial rewards of the work that taxpayers have funded. I wonder if you could talk more about how the benefit could be more strictly tied to the cost in the case of commercial users.

[Vincent Gogolek]

I think you start running into some very serious problems when you start judging it on the number of requests. You start running into issues of freedom of the press, because a number of reporters would probably file a request a week, or a request a day. The threshold becomes very difficult to establish. It would be problematic, but again I would recommend to your attention--and perhaps further inquiries of Commissioner Loukidelis--the B.C. system, which seems to work well.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Not to cover old ground, but for example if a law firm dedicates a branch of its operation to data brokerage and it sells information that it acquires through ATIA to clients, how does the British Columbia system impose the real cost of the research on the firm that is benefiting from it?

[Vincent Gogolek]

The system does not look at full cost-recovery, because then you start getting into real problems with how you assess the cost of creating it. You also start getting into the problem I was outlining earlier in response to—

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

The problem I'm pointing to is that you have taxpayers across the country paying for this information to be extracted--because it's not always at the fingertips. Sometimes questions that are contained in ATIPs require research, or they require information to be compiled, ordered, or counted--and all of this costs money. If the information is being used for commercial reasons--in other words, it is being sold by, as I say, a data broker or someone else who does this as a business--it is reasonable to expect that such a business person would absorb the cost of the product they are selling. I'm asking how the British Columbia system addresses that.

[Vincent Gogolek]

I'm afraid I'm not able to respond in the detail that you want, because we as an organization do not fall into that category.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

I understand that, but you have put British Columbia's fee system up as an example.

[Vincent Gogolek]

Yes.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

So do you have information on how it would work in the hypothetical I just provided?

[Vincent Gogolek]

I have information in the sense that we have not had problems with the way it is set up, or at least not major problems. So that's why I commend it to you as an example, because it seems to work.

As to the details of how it works, I'm afraid I really couldn't provide you with that information. I'm sorry.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Mr. Rubin, do you have any ideas on the subject?

[Ken Rubin]

As one who knows a lot of users and all the rest, I'm afraid there are perhaps two misconceptions that I can totally clear up. One is that in this country there are such things as data brokers, because there's not a big enough market here. I don't think people cough up a huge amount of information and resell it and resell it. It's just not in the nature of the way things are done. You might have clients who ask you to get information for them, but you don't go and collect information and have a huge warehouse and deposit it.

The other thing is I think it was quite unfortunate of Commissioner Marleau.... Remember the distinction that he was also trying to make between access users and complainants. By putting in front of the committee the fact that two or three complainants on that list are tying up his system--I'm not going to say that they're right or wrong, since that's their right--I think you have to look at what's wrong with his system that he can't handle it with the extra resources that you've given him, and that he can't even handle my six or so complaints, and that he can't handle anybody else's, and that people don't want to come to him.

I don't think that you have a right that you can start making distinctions. Another way of approaching it is that if somebody makes a request and there is a huge volume of records, past a certain point I think it's legitimate to have charges. There are ways of handling this. You could talk to the requester and try to come to some grips with it. But to destroy the whole act because you think or you perceive there's the bogeyman of one or two people who supposedly are abusing it, that's a dangerous slippery slope.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

I might have inadvertently put the two issues together. One is the filing of complaints, and the other is the filing of ATIPs themselves. I shouldn't have mixed them quite so directly.

I think what the commissioner was getting at was to try to put into perspective the number of complaints the system has received. That number has gone up. At the same time, if you start to look at where the complaints come from, they come from a very small number of people, and they're directed at a very small number of government agencies.

My sense is that he was trying to give some context to the complaint numbers. If you just looked at the raw data your eyes might pop out of your head, and you might think that there's tremendous dissatisfaction. But I think many users are very pleased with the system, and I hear that from time to time. There are some good stories, and it is a good system. There is room for improvement, and you've both made some good suggestions.

I will just conclude by asking you a question. The accountability act didn't go as far as you had wanted it to go. It did make some big improvements, but if there was one thing that you could ask--and I'm going to ask you to be a politician just for five seconds--one thing that's politically realistic in the context of a minority Parliament that you think we could do, what would it be and why?

[Ken Rubin]

I'll give you two.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Pick your favourite one.

[Ken Rubin]

I'd say make it a constitutional right, section 2.

But if you don't mind me also saying, here's the dilemma that I'm having. I don't necessarily blame this government or a previous government, because you both put out a lot of inspectors to pasture. You said to people like Canada Packers, you do the listeria testing. You said to people on the airline front, Air Canada, you do the testing. In the past I have been able to get safety records, which I think we should be entitled to. That's why I'm saying extend the act where there's a public function still so there's a disclosure code, so I can get those inspection reports and so the public can be reassured that the health and safety environment in this country is still in good hands. That is a very serious concern. That's why I made that at the forefront.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Mr. Gogolek.

[Vincent Gogolek]

In terms of something that could be done, the Reid report with order-making powers, recommendations one and two of your platform from 2006--I think that's important. I think there is a real consensus.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

You said one and --