Evidence of meeting #29 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was sector.
A recording is available from Parliament.
Executive Director, B.C. Freedom of Information and Privacy Association
We just raised this as something that is not in the federal act, and we offer the example of B.C. for your consideration.
Conservative
The Chair Conservative Blaine Calkins
I appreciate that very much.
We now move to the last questioner in the five-minute round, Mr. Bratina. Then we'll go to Mr. Blaikie, and then if anybody else has any questions that they'd like to ask, please let me know.
Liberal
Bob Bratina Liberal Hamilton East—Stoney Creek, ON
In recommendation 13, the commissioner suggests discretion be given to discontinue frivolous and vexatious complaints in specified circumstances. The Privacy Commissioner does not now have the authority to refuse or discontinue. Do you have a comment on that, Mr. Gogolek?
Executive Director, B.C. Freedom of Information and Privacy Association
Yes. We're in favour of this change for reasons of judicial economy and to avoid wasting public resources.
We note that the Privacy Commissioner is saying that it should be held in his hands. You may remember that when we appeared on the Access to Information Act, our view was that the Information Commissioner should have that power, but the recommendation was that it be left with the departments.
We want to emphasize that we think it should be very tightly circumscribed, because we're talking about people's rights to complain. It should only be used in situations where the Commissioner is of the view that the complaint is frivolous, vexatious, or in bad faith. There should, of course, be the ability to appeal that decision.
Liberal
Bob Bratina Liberal Hamilton East—Stoney Creek, ON
With reference to your B.C. experience, the Public Sector Act has a domestic data storage requirement. Can we apply the way you do things in B.C. to federal procedures?
Executive Director, B.C. Freedom of Information and Privacy Association
Yes. We have our section 30.1. A great deal of discussion that went on is available online from the commissioner's website. The former commissioner did a very extensive report. We did a report. There's been discussion of it during the two legislative reviews that have taken place since.
Not everybody is in favour of it. There are some public bodies that say, “This costs us money” or “All the cool kids to get to use this, so how come we can't?” However, the public consensus seems to be that this is a good thing. It's popular with British Columbians. The government brought it in specifically because of very wide public concern.
Liberal
Bob Bratina Liberal Hamilton East—Stoney Creek, ON
Was it you who mentioned the compensation paid to Mr. Bruyea?
Executive Director, B.C. Freedom of Information and Privacy Association
Yes, Sean Bruyea.
Liberal
Executive Director, B.C. Freedom of Information and Privacy Association
Well, he brought an action for damages under the Charter of Rights and Freedoms because of a violation of his charter rights. This was as a result of the repeated accessing and use of his very sensitive personal information. When you get our written submission, there's a link to his statement of claim, which was, as these things go, settled. He was paid an unknown amount of money, and nobody says anything after that.
That was settled, so there wasn't actually a decision at any point, but he was compensated to some extent. Our view is that people shouldn't have to be bringing court charter cases. There should be various remedies, which the commissioner has talked about in his recommendations.
Liberal
Bob Bratina Liberal Hamilton East—Stoney Creek, ON
Does it say anything about the harm that was done? Quite a lot of the harm in cases like this could be issues of an elected official's integrity, and so on.
I'm not sure how we would come up with a regime of sanctions or damages.
Executive Director, B.C. Freedom of Information and Privacy Association
We talked about this earlier in the context of the Access to Information Act.
There are quasi-criminal penalties for interfering with access rights. What needs to happen is some sort of sanction so that people treat these as actual rights and not as helpful suggestions that you really shouldn't do this. No. It should be that if you do this, you will have major personal, financial, or carceral problems. Also, people whose rights have been violated should be provided with a remedy.
Conservative
The Chair Conservative Blaine Calkins
Now let's go to our last official round of questioning with Mr. Blaikie, and then, colleagues, let me know if you have any follow-up questions for Mr. Lightbound.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
I want to follow up, Mr. Gogolek, on Mr. Kelly's question earlier about algorithms.
Am I right that the concern around privacy is less about revealing the algorithm itself and more the private information—the inputs, if you will?
Executive Director, B.C. Freedom of Information and Privacy Association
It's a combination of things. It's what information is being collected and what it's for. This is one of the problems with data mining. It's one thing to mine data, but in some cases what you end up with is data strip mining and all kinds of information being put into the hopper.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
To use your example of, say, an algorithm being used to determine people's candidacy for government training programs, is it your concern that an individual Canadian should be able to find out what personal information was used by whatever the algorithm is—not necessarily revealing what the algorithm is in itself, but to be able to ask what the inputs were, what personal information you had, and what you put into this black box? Is that what Canadians should have a right to know? Is that the contention?
Executive Director, B.C. Freedom of Information and Privacy Association
Yes, for two reasons. One is the privacy of personal information. I gave you this information for this purpose, and now you're using it for that purpose, and I don't really see how it's connected. The algorithms are amazing. It's amazing what they come up with. Mr. Kelly is probably very familiar with what things come up in terms of credit. Some of it is astounding.
On one level, it's the collection and use for different purposes, and this is also where the information sharing agreements recommendation comes in in terms of mixing and matching all this stuff. We need to know generally how that's happening. That recommendation would provide a level of protection.
It's also about the proper functioning of government and in a way, I guess, about the proper functioning of quasi-judicial decision-making. If a public body makes a decision about your eligibility for training and they say no, you should have some ability to figure out why not.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
It's more than just having a right to know what the inputs were in terms of personal information. It's also the details of the algorithm that—
Executive Director, B.C. Freedom of Information and Privacy Association
Yes. What buttons are on the blender: frappé, purée, goo-ify, whatever? You might not have to know exactly where all the wires are connected in a blender, but you need to know that, yes, this was run through a blender, here are the buttons, and here's what went into the blender.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
I don't know if this is a real concern—it's certainly speculative on my part—but a lot of those algorithms wouldn't be developed in-house by government, it seems to me. A lot of that is farmed out to private companies. Do you think if those algorithms were being revealed under the Privacy Act, there would be an issue of government being able to access the services of companies that are very good at doing that because they don't want to reveal to competitors the nuts and bolts of what they do?
Executive Director, B.C. Freedom of Information and Privacy Association
In our experience, companies that have the black boxes absolutely do not want anybody to know anything about it. A lot of times they're in a competitive situation and that's understandable, but I think there's a difference between knowing exactly how you make the box actually work and knowing what goes in and generally what the buttons are on the blender.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
From a legislative view, how do you think we should be thinking about that problem to strike that right balance between giving Canadians enough information about how decisions are being made in this fashion without unduly disadvantaging government, if you will, from accessing the best services in that industry to create that decision-making software?
Executive Director, B.C. Freedom of Information and Privacy Association
Part of it is that the government has a lot of purchasing power. A lot of companies want to sell to government. Their contracts are subject to freedom of information legislation. If they were dealing with another company, that would not be an issue for them. Some companies may not want to bid on federal contracts because they're concerned about the level of disclosure they would have to provide on the workings or the methodology of the black box—i.e. “here are the blueprints, here are the circuit boards, and here's the way we make it do what it does,” as opposed to “we take these things, put them together, and the smoothie comes out”.