Bill C-461 (Historical)

CBC and Public Service Disclosure and Transparency Act

An Act to amend the Access to Information Act and the Privacy Act (disclosure of information)

This enactment amends the Access to Information Act to provide that the Canadian Broadcasting Corporation may refuse to disclose any information requested under that Act if the information is under the control of the Corporation and the disclosure would reveal the identity of any journalistic source or if the disclosure could reasonably be expected to prejudice the Corporation’s journalistic, creative or programming independence.
It also amends the Privacy Act to specify that certain information is not personal information for the purposes of that Act.

Access to Information, Privacy and Ethics

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I have the honour to present, in both official languages, the seventh report of the Standing Committee on Access to Information, Privacy and Ethics concerning Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information).

The committee has studied the bill and has decided to report the bill back to the House with amendments.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Chair, pursuant to Standing Order 97.1 I move that the committee report to the House a recommendation that Bill C-461, an act to amend the Access to Information Act and the Privacy Act (disclosure of information), not be further proceeded with and to give the reasons therefore.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Thank you, Mr. Chair. I move:

That Bill C-461, in Clause 6, be amended by replacing line 30 on page 2 with the following: (3) This Act does not apply to personal information that is under the control of the Canadian Broadcasting Corporation and that would reveal the identity of any confidential journalistic source. (4) Sections 4 to 10 do not apply to personal

The rest of that's fine.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Chair, at this stage, I would prefer to read it into the record myself because I see what a ruthless bunch I'm playing cards with here, and I don't want to be sitting in my undershirt at the end of this round.

That Bill C-461, in Clause 5, be amended by replacing lines 25 to 27 on page 2 with the following: "the information relates to its journalistic, creative, or programming activities."

[The Chair, NDP, Pierre-Luc Dusseault]

Now we go to clause 4, for which we have received three amendments. The first was from the NDP and it reads as follows:

That Bill C-461, in Clause 4, be amended (a) by replacing lines 17 to 19 on page 1 with the following: "4. (1) The portion of paragraph (j) of the definition "personal information" in section 3 of the Privacy Act before subparagraph (i) is replaced by the following: (j) information about an individual who is or was an officer or employee of a government institution or an employee of the office of a minister of the Crown that relates to the position or functions of the individual including, (2) Subparagraph (j)(i) of the definition "personal information" in section 3 of the Act is replaced by the following: (i) the fact that the individual is or was an officer or employee of the government institution or minister's office, (3) Subparagraph (j)(iii) of the definition "personal information" in section 3 of the Act is replaced by the following: (b) by replacing line 2 on page 2 with the following: "the government institution or minister's office an annual salary" (c) by replacing line 9 on page 2 with the following: "the government institution or minister's office an annual salary" (d) by replacing line 19 on page 2 with the following: "reimbursed by the government institution or minister's office,"

I will render a decision on the admissibility of that amendment.

Bill C-461 amends the Privacy Act by amending the definition of "personal information" as it pertains to the executives and employees of a federal institution. The purpose of the amendment in question is to extend the scope of the bill by subjecting the employees of a minister's office to the definition of "personal information".

House of Commons Procedure and Practice, second edition, states, on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

The Chair is of the view that adding the employees of a minister's office would extend the application of the provisions of Bill C-461 to a new group of employees, which constitutes a new concept that is beyond the scope of the bill. Consequently, in my view, the amendment motion is out of order.

Mr. Angus, do you have a point of order?

[The Chair, NDP, Pierre-Luc Dusseault]

Now we go to amendment NDP-1, which also amends clause 2.

Before we go to debate, I will read the amendment for those here present:

That Bill C-461, in Clause 2, be amended by replacing lines 12 to 15 on page 1 with the following: "requested under this Act if the information contained in the record relates to its journalistic, creative or programming activities."

Mr. Boulerice, you have the floor.

[The Chair, NDP, Pierre-Luc Dusseault]

If there are no further questions and no one wants to speak, I am prepared to call amendment CPC-1.

I am going to read it so that it is clear for everyone:

That Bill C-461, in Clause 2, be amended by replacing line 10 on page 1 with the following: 18.2 (1) This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation and that would reveal the identity of any journalistic source. (2) The head of the Canadian Broadcasting

(Amendment CPC-1 carried on division)

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

I apologize. I will try to do better.

As I was saying:

Bill C-461 cannot be salvaged, even by extensive amendments. The government and Parliament have no place in the newsrooms of the country. Bill C-461 turns an outright exclusion for CBC journalism into an exemption based on an injury test that could be fought by each applicant in court. This would place conditions on CBC's journalism that exist for no other news organization in Canada. This is an affront to the principle of freedom of the media. Some have argued that such demands of the CBC would be unconstitutional. Bill C-461 moves further away from what is really needed: additional measures [to provide protection] from the government and powerful interests.

There are journalistic sources, but also the issue of programming. Mr. Chair, I am sure that we will have occasion to talk about this later since the CBC is in a competitive market, particularly as regards advertising purchases.

In the years immediately after the CBC was put under the Access to Information Act in 2007, the corporation admittedly experienced serious problems in responding to access requests in a timely fashion. That problem has been rectified, as exemplified by the "A" grade recently awarded to the CBC in the most recent report card by the Information Commissioner of Canada.

The author of the bill reminded us during his testimony that Canada had fallen to 56^th place out of 90 countries with regard to transparency. My impression is that this bill will solve nothing, that it will jeopardize journalistic sources and that it will also be an attempt to solve a problem that does not exist. There are enough federal government departments and agencies that have transparency and access to information problems. This direct attack on the CBC could have been avoided.

The Guild is not the only organization concerned about journalistic work. Ms. Maryse Bertrand, who is Vice-President, Real Estate, Legal Services and General Counsel at the Canadian Broadcasting Corporation, wrote to you, Mr. Chair. I believe she testified before this committee.

While this legislation proposes to increase the public's access to information held by removing the specific exclusions provided in law to the Canadian Broadcasting Corporation, Bill C-461 may undermine the Corporation's ability to do its job as mandated by Parliament. As the Information Commissioner pointed out in her submission to the Committee, the Federal Court of Appeal ruling is clear: The Commissioner can review documents held by CBC/Radio-Canada in order to determine whether the exclusion under section 68.1 applies, except when it comes to journalistic sources. We are both satisfied with that decision and have been working well together to process our outstanding cases. C-461 would remove the 68.1 exclusion completely. As we noted in our appearance, public broadcasters in Ireland, Great Britain, and Australia all have exclusions from their Freedom of Information laws for journalism, programming and creative activities. The exclusion exists in order to ensure that these public broadcasters are subject to freedom of information legislation without compromising the very job they are mandated to do. It is unclear why that situation should be different for Canada's public broadcaster.

Indeed, Mr. Chair, they are not clear at all. That is our criticism of this bill, which risks jeopardizing one of the most effective newsrooms in Quebec and Canada.

Vice-President Bertrand continued as follows:

Our specific concerns are the following: By changing "journalistic, programming and creative activities", to "journalistic, programming and creative independence", C-461 limits the protection of CBC/Radio-Canada's activities to areas where the Corporation can prove damage to its independence.

Under the system of exemptions, the burden of proof is now on the CBC. Mr. Bob Carty, of the Canadian Media Guild, told the committee about the proof of prejudice to its independence from the government. He told us this:

...a pharmaceutical company eager to know what we are finding out about the deadly side effects of one of its drugs could argue in court that the release of my journalistic materials, even sources, in no way compromises the CBC's independence from government and Parliament. The release would damage my credibility, the CBC's journalistic integrity, and quite possibly subject us to a lawsuit to prevent the material from being broadcast.

Going back to Ms. Bertrand's letter: By failing to specifically protect journalistic sources, C-461 may undermine the ability of CBC journalists to secure the trust of sources, obtain confidential information, and report to Canadians. To be clear, this is not a question of whether the Commissioner can be trusted to see confidential information. The issue is whether confidential sources will trust in CBC/Radio-Canada journalists knowing that their identity will be shared with the Commissioner's office. We must disagree with the Commissioner's belief that journalistic sources are adequately protected elsewhere. They are not.

That is Ms. Bertrand's point of view.

Furthermore, like judges who do not need to see the names of sources in order to decide if they should be protected, we believe the Commissioner does not need access to such names in order to decide that information is at the heart of our journalism. This is why the decision from the Federal Court of Appeal specifically excludes the Information Commissioner from viewing journalistic sources in the current law.

We are not talking about redacting a document to remove only names, but rather about all the information, context, dates and places that might help identify a whistleblower or person working in close co-operation with the commissioner.

I want to close with Ms. Bertrand's conclusion. I will also let my colleagues give us their comments on the amendment that has been presented to us.

Ms. Bertrand writes as follows:

If Parliament wishes to update Canada's Access to Information Act, we believe that it should do so, as part of an overall review. As the Commissioner told the Committee, changes to Access to Information "demand thoughtful, unified action and are not easily amenable to a piecemeal solution. Piecemeal efforts result in unintended consequences which it is now clear, would be the case with this piece of legislation, however well-intentioned. For these reasons, we believe that the Parliament should not proceed with C-461.

In our humble opinion, the amendment designed to protect journalistic sources is inadequate. In fact, the entire bill should be reviewed. The protections provided for the CBC's journalistic, creative and programming work should be strengthened. However, that is not what we see before us.

In light of these preliminary remarks, Mr. Chair, I would like to say that we will vote against the amendment.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chair.

Coming back to the importance of protecting journalistic sources, I repeat that we believe the amendment presented by the Conservative Party still fails to address all the concerns that have been submitted to us.

There were other, much more effective ways of doing that, but the Conservatives preferred to head in this direction, thus raising quite serious concerns within the profession across the country. If there had been a genuine concern to enable the Information Commissioner to do her job, we could perhaps have drawn on foreign legislation that grants full authority to obtain documents and determined whether the access to information request is legitimate. Instead of that, they have restricted the definition of "activities" to that of "independence", which has somewhat inflamed the situation.

On this point, the Canadian Media Guild, which is concerned with matters pertaining to the right to information, told us this during the hearings:

We are concerned that the impetus behind Bill C-461 is to strengthen the hand of the CBC's media competitors and to weaken the Corporation's journalistic integrity and ability to protect its confidential sources.

We are really addressing the issue of protection for journalistic sources. Most of the bill's opponents pointed out this particular feature. It did not concern disclosure of the compensation of the most highly paid employees, a point on which most people could agree.

The Guild also said this:

If the supporters of this bill really want the Access to Information system to work better—and we would agree that this is desperately needed—then they should bring forward a comprehensive package for reforming the Act, with careful consideration for how it intersects with the Privacy and Broadcasting acts. For example, the House of Commons and the Senate should be put under the act as they are in most modern freedom to information laws and in other parliamentary democracies…. The Information Commissioner should receive order-making powers….

That is not provided for in the bill or in this amendment. Bill C-461 addresses none of these changes.

The Guild also noted the following:

If one of the objectives of C-461 is to achieve greater transparency about the salaries paid to employees of Crown Corporations, of which the CBC is only one, as well as those of government departments and agencies, then it should address that directly and comprehensively, naming all the departments, corporations and agencies involved and thoroughly examining the relevant privacy issues.

We can also address the issue of the bureaucracy. I recall a comment by Mr. Carmichael that I thought was interesting. He talked about the danger involved in creating a new registry. That is an explosive word, and I do not think the Conservative government intends to create more registries, red tape and bureaucracy.

The Guild also told us this:

Bill C-461 cannot be salvaged—

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chair.

It is important to put the entire bill in context. I see this amendment as an attempt by the Conservatives to protect journalistic sources in a way. This is an issue that has been raised several times by various groups. It was mainly raised by professionals working in the field, sometimes by those from the CBC, but not exclusively by them.

In this brief comment, I also want to provide some context for this bill, which concerns access to information. It does not address just any federal government organization but rather one organization in particular, the Canadian Broadcasting Corporation. It has a long history as well as a unique mandate and role in the television, artistic and news landscape. I think it is important to bear that in mind to ensure that the unique mandate and special role of the Canadian Broadcasting Corporation are preserved for decades to come.

This institution, which recently celebrated its 75^th anniversary, has made a contribution to Canada's identity and to our cultural life. That contribution has been greatly appreciated by all Quebeckers and Canadians. Things have been done at the CBC that have never been done elsewhere and that could not have been done elsewhere. It is therefore a precious jewel.

On this point, it is worth citing the Fédération professionnelle des journalistes du Québec on the values that must be defended when talking about CBC/Radio-Canada.

Note that the corporation's mandate includes specific items such as local and regional coverage, which is much more intensive and greatly appreciated by communities not generally covered by the major private networks. This makes it possible to tell stories about all the provinces and regions of the country. These are stories that have shaped our collective imagination both in Quebec and elsewhere in Canada. For adults, those stories were told through documentaries, news reports and investigations and, for children, through cartoons that stimulated our children's imaginations on Saturday and Sunday mornings.

With respect to the values that should be defended, I refer to the brief submitted to us by the Fédération professionnelle des journalistes du Québec, which states, with respect to the relevance of a public broadcaster:

The Standing Committee was not given the mandate to consider the appropriateness and the pertinence of a public broadcaster in Canada. Parliament has decided on this issue decades ago when it launched the CBC. Yet, it is the subtext to C-461, as if there was an elephant in the room. The FPJQ has always defended the existence of a strong public broadcaster as an irreplaceable vector of public interest information. The Federation opposes any measure that would diminish this role.

That is obviously an opinion that the New Democratic Party shares.

The FPJQ continues as follows:

The mainstream media are facing, worldwide, economic difficulties that affect their ability to inform the public in a professional manner. ...we must be careful not to weaken one of the most important news organizations in the country, which has received many prestigious awards for the quality of its information.

The second value that, according to the federation's presentation, must be defended is the independence of the CBC as a public broadcaster. This is the independence that we have discussed, the interpretation of which, in accordance with the terms of the bill before us, we feel is not very clear. The FPJQ states:

It can be difficult to accept the idea that an organization funded largely by public funds should not be held fully accountable, as any other Crown corporation. Still, it is a reality that we must accept since the CBC operates in a very special and unique field, information and journalism.

To digress briefly, it is not just information that must be considered, but also programming. However, I will come back to that later.

The FPJQ's presentation continues:

In this field, the value of a media company, regardless of its structure of property, is its independence from all the powers in place. In the CBC's case, we must especially protect and warrant its independence from the various governments that come and go at the helm of the State. "The status of the broadcaster is a defining feature of the CBC and helps to distinguish it from other Crown corporations. It has the status of a diffuser, and as such, it is in charge of its editorial decisions and it takes full responsibility for them, to the exclusion of executive power of the State." The Broadcasting Act explicitly stipulates in article 46, paragraph 5: "The Corporation shall, in the pursuit of its objects and in the exercise of its powers, enjoy freedom of expression and journalistic, creative and programming independence."

One cannot freely report if one is not independent. And if one does not freely inform, one is not in the news business but in the realm of promotion, publicity or worse, propaganda. The free flow of information and the freedom to report it is a feature of the CBC, unlike some of its counterparts in authoritarian regimes, where state-sponsored information is censored and controlled. The FPJQ intervened several times in its some 40 years of activity to protect the CBC's independence against the threats made by successive governments.

This is obviously a value that is dear to us. I thought it was important to recall the position of the Fédération professionnelle des journalistes du Québec on this point.

It is important to note that the CBC contributes in a way to the protection of linguistic minorities. I am mainly thinking of the coverage that francophones outside Quebec obtain through RDI and local Radio-Canada programming. That would probably not be the case if free market forces alone gave free rein—

[The Chair, NDP, Pierre-Luc Dusseault]

We will go straight to the second item on the agenda, clause-by-clause consideration of Bill C-461.

Pursuant to Standing Order 75(1), clause 1, which concerns the short title, is postponed. I therefore call clause 2.

(On clause 2—Canadian Broadcasting Corporation)

[John Carmichael, Conservative, Don Valley West, ON]

Thank you, Chair.

Thank you to our witnesses for appearing today.

Commissioner, I think I've had most of my questions answered through earlier testimony and some of your presentation today, but I'd like to just clarify something. The private member's bill, Bill C-461, does not really distinguish between general information that the CBC possesses and information that the CBC possesses that would reveal the identity of confidential journalistic sources.

I wonder if you could go a little deeper and give us your view on that situation specifically.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Good.

As you probably know, many of the people who have come to testify before us on Bill C-461 had quite major concerns about the protection of journalistic sources.

Our interpretation of the bill as it stands is that information on programming, creation and journalistic work will be protected provided it concerns the CBC's independence. In our view, under the current interpretation, independence means independence from the federal government.

Many people who came here asked whether it was possible, for example, for someone to file an access to information request to determine what company or individual the program Enquête would be investigating. In that case, the journalist might perhaps be compelled to provide the applicant with information on ongoing investigations.

Do you view that kind of practice as a threat from your privacy perspective?

[Jennifer Stoddart, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you, Mr. Chair.

Mr. Chair and honourable members, thank you very much for inviting me here this afternoon for your study of Bill C-461, the CBC and public service disclosure and transparency act.

As you said, Mr. Chair, the senior general counsel is with me in order to respond to your more technical legal questions.

First, for some context, from the outset I'd like to acknowledge that the amendments to the Access to Information Act and the Privacy Act in the bill raise complex and highly topical issues related to open government. We take it as given that most citizens would like to see greater openness in public institutions. Accountability plays a central role in our democracy and in Canadian society. Indeed, in September 2010, all of Canada's federal, provincial, and territorial access to information and privacy commissioners signed a resolution to promote open government as a means to enhance transparency and accountability.

As you are aware, Bill C-461 amends both the federal Access to Information Act as well as the Privacy Act.

As Privacy Commissioner, I will limit my remarks to those amendments that implicate privacy. I understand that you have already had the opportunity to hear from my colleague Ms. Legault, the Information Commissioner, on the amendments pertaining to access to information.

At a high level, Bill C-461 revises the definition of "personal information" found in section 3 of the Privacy Act to specify that certain categories of information are "non-personal" information for the purposes of release under access to information requests.

Specifically, the elements no longer deemed personal information would include: the classification, salary and responsibilities of any federal employee whose salary is equal to or greater than the minimum salary of the first level of the Deputy Minister category, currently set at $188,600; the classification, salary range and responsibilities of any position held by a federal employee whose salary falls under the first level of the Deputy Minister category; and the details of any reimbursed expenses incurred by any federal employee in the course of their employment.

Now I will tell you about existing practice in government.

To better situate these proposed amendments in the broader drive for openness and accountability, I would like to briefly touch on comparable measures that already exist in various sectors and at various levels of government.

The Public Service of Canada already makes publicly available its rates of pay for all of its positions, up to and including those at the Deputy Minister and Chief Executive Officer levels. Similarly, for Governor-in-Council appointments, the Privy Council Office website lists detailed salary ranges for each position, which incidentally include those of the Office of the Privacy Commissioner of Canada.

The Treasury Board Secretariat has also implemented a series of measures that apply across the federal public service for the proactive disclosure of financial and human resources-related information such as travel and hospitality expenses for senior government officials, the reclassification of government positions, and contracts above $10,000.

At the provincial level, some governments use thresholds to disclose the salaries of public sector officials. According to our research, Manitoba has the lowest threshold at $50,000, whereas Ontario and Nova Scotia adopted $100,000 thresholds, and British Columbia a $125,000 threshold. While Manitoba, Ontario and Nova Scotia disclose the names and salaries of all officials and employees earning over the established threshold, British Columbia only releases the names and salaries of a public sector organization's CEO and the next four highest ranking executives.

In the private sector, publicly-traded companies must also disclose all compensation paid to their Chief Executive Officer, Chief Financial Officer and next three top-paid executives. This includes all shares, options and bonuses, and applies to those earning more than $150,000 in total compensation.

Given these examples, it would appear that disclosure of salaries for individuals in leadership roles within organizations, in both the Canadian public sector and private enterprise, is already best practice.

In the opinion of my office, and taking into account best practices elsewhere in Canada, the disclosure of the salaries of the most senior officials in the federal public sector does not represent a significant privacy risk relative to the goal of transparency and the broader public interest. With respect to the disclosure of position classifications, job descriptions, and reimbursed expenses, my understanding is that this kind of information is already disclosed upon request in many government departments and agencies under the existing access to information regime.

Within my own office, our director of human resources and our chief privacy officer indicate to me that were we to receive an access to information request tomorrow for an employee's classification, salary range, work description, or reimbursed expenses, we would disclose this information. This would be in accordance with our access to information and privacy responsibilities and our general commitment to transparency and accountability to Canadians.

Given current practice, and the broader public policy aim of institutional transparency and accountability, these disclosures do not represent serious privacy implications.

I thank you once again, Mr. Chair, for this opportunity to present my office's views on this bill. I look forward to your questions.

[The Chair, NDP, Pierre-Luc Dusseault]

We will begin the 84^th meeting of the Standing Committee on Access to Information, Privacy and Ethics, which concerns Bill C-461.

In the first hour, we will hear from the Privacy Commissioner, Ms. Jennifer Stoddart. She is here with Ms. Kosseim, who is Senior General Counsel and Director General of Legal Services, Policy and Research.

Mr. Boulerice, you have the floor.