Information & Ethics Committee on March 11th, 2009

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

No, you may not. I'm still speaking to Mr. Tromp.

If that is all it would take to get the same kind of excitement from opinion leaders like you, maybe all we need to do is make a declaration.

[Stanley Tromp]

Well, I agree that it would be a good start, and it would be great to see the Prime Minister try it and see what occurs as a result. I think it might be positive.

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

Okay. What we've done here, by contrast to a declaration, is add 69 new bodies, agencies, and organizations to the act and broadened its scope. I see that as being more substantive than a mere declaration of intent, but you may disagree. That's why it's so great we live in a democracy.

[Murray Rankin]

It's not a mere declaration but what is called an executive order, and therefore it's binding on the U.S. administration. It's a formal EO that was issued by the President of the United States; it therefore has an effect on the way in which executive discretion is exercised by the agencies to which the act is subject. I don't want members to think it's a mere declaration by President Obama; it's a formal executive order.

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

All right. That clarifies why we're all celebrating.

Thanks very much.

[The Chair, Liberal, Paul Szabo]

Madame Thi Lac is next. She is a member from Quebec.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Gentlemen, thank you for taking part in our videoconference today. I particularly want to thank Mr. Rankin and the Commissioner, who spoke a few words in French for us francophones on the committee. I appreciate that enormously and I wanted to thank you for it.

Commissioner, my first question is for you. Before writing and making his recommendations, Mr. Marleau said he had consulted people working in the field. Were you consulted by Mr. Marleau?

[David Loukidelis]

I've had numerous discussions with my colleague, for whom I have great respect, since he became Information Commissioner and in his previous post. These are matters we have discussed generally in sharing experiences and information between our jurisdictions on how the law is framed in British Columbia, how it works here, and vice-versa. Yes, we have had discussions in this area.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Marleau recommends that the commissioner be granted discretion on whether to investigate complaints. In another of his recommendations, he suggests that complainants should have direct recourse to the Federal Court for access refusals rather than comply with the current complaints process.

Isn't there a risk of increasing the number of complainants by adopting these two measures? If the commissioner refuses to investigate and the requester turns directly to the Federal Court, doesn't that add a tool that will complicate requests and complicate the system? I would like to hear what you have to say on that subject, commissioner.

[David Loukidelis]

Thank you very much for that question.

In the second part of your question you expressed concern that perhaps a discretion on the part of the commissioner to not investigate could increase the number of Federal Court actions. When we're talking about court appearances and court proceedings, there is always the issue of cost and whether the courts would be accessible to more complainants, in view of what it costs to retain counsel, file proceedings, and pursue them.

In British Columbia we have a discretion to not investigate. That applies on the access to information side as well as the privacy protection side--I play both roles. Of course we only decline to investigate a relatively small minority of cases, and we only do so consistent with administrative law principles. In good faith and acting on relevant and rational grounds, we may decline to investigate something that may be within our jurisdiction, but for a variety of reasons there may be another remedy through another process where it's more appropriate to pursue that remedy, or we will use other grounds to decline to investigate. Again, that applies to a small minority of cases, but it is an important feature of our law that we have the ability to turn away those cases that deserve to be turned away.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

According to the answer you've just given us, if people turn to the Federal Court, there will be costs with that. did I understand correctly?

[David Loukidelis]

That's right, but simply to say that if people were turned away from the commissioner's office, the question would be how many more of them would be going to the Federal Court, given that it can be quite expensive to do so. I would wonder whether in fact you wouldn't see a big increase in cases there because of the costs involved.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Precisely, isn't there a risk of doing the opposite of what we want to do? Instead of improving the act to make information more accessible, isn't there the risk that we'll deprive certain persons of access to information, since the cost will be exorbitant for those who have to go to Federal Court? I believe we are doing the opposite of what we would like to do, that is to say make the system much more accessible. On the contrary, we're going to complicate it. People who want to request information will be deprived of it because they won't be able to afford it.

[David Loukidelis]

Certainly the opportunity to make requests and receive information would not be impacted by the recommendation, as I understand it. I should underscore that although we have a discretion not to investigate cases in B.C., we do that only in the clearest of cases, and it is a small minority of cases. So we turn away very, very few people. It is a valuable tool for us. But in the vast majority of cases we still take on the appeal, so that we fulfill our role to vindicate the public's right of access to information by reviewing administrative decisions to deny access.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

As the Privacy Commissioner of British Columbia, you have even broader executive authority. That authority is not limited to merely administrative matters. Does the British Columbia act state how you will exercise your decision-making authority and the criteria on which it is based?

[David Loukidelis]

The order-making power extends both to the access to information and privacy protection provisions.

In relation to access to information, if someone who has sought access to information is denied access or a fee is imposed that they believe is unjustified, or if there's another inappropriate action by the public body, they can appeal to us. It's called a request for review. We mediate settlement in about 85% to 90% of the cases, depending on which year you're looking at. If the matter doesn't settle, we send it to a formal hearing, which is done in writing. I then have the ability to make findings of fact and law, based on evidence, and essentially arrive at a decision on whether there should be more access granted or whether the public body was justified in denying access, based on the provisions of the law. I then can order the public body to disclose more information and I can order it to reconsider its decision; I can uphold its decision, and in some cases I do a bit of both: partially upheld on certain exemptions, or entirely on some exemptions, and perhaps ordered to disclose more information in other parts of the request or the actual appeal. That order is binding, and must be complied with, subject only to judicial review.

So, really, it's a full de novo review of the decision of the public body with that binding order to compel the public body to do what is set out in the order.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

I haven't asked the other witnesses here any questions, but I want to tell you that your evidence has shed a great deal of light on a number of my questions. Thank you for being with us this afternoon.

[The Chair, Liberal, Paul Szabo]

Thank you, madam.

We're now going to move to Mr. Bob Dechert, from Ontario.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Chair.

Mr. Loukidelis, I wonder if you could share with us your experience in British Columbia with respect to the percentage of users of the B.C. access to information system that are commercial organizations, to your knowledge.

[David Loukidelis]

I don't have the numbers at my fingertips, and I ought to. I apologize for that. I can make them available to the committee afterward, if that is the wish of the committee.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Sure.

[David Loukidelis]

But if you include media—

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Could you take a guess at the numbers, including media and not including media?

[David Loukidelis]

Yes, I was going to say if you include media as commercial requesters, you're probably talking about 8% of all requesters. If you take the media out, you're probably left with 4%.

The vast majority of requesters under the B.C. law are actually individuals seeking access to their own information. There are political parties, advocacy groups, interest groups, and commercial applicants as well.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Marleau mentioned to us last week, I believe, that a significant number of complainants he deals with under the federal system are what he described as “data brokers”. I understood that to mean commercial organizations that gather information for their clients and resell it to them. Perhaps that points out a difference between provincial areas of jurisdiction and federal areas.

If that were the case, would you agree that commercial organizations, such as data brokers or lobbyists or even lawyers in private practice, as I was before coming to Parliament, should pay a reasonable cost of providing that information, given that they're going to resell it to their clients in any event?