Information & Ethics Committee on Oct. 25th, 2011

[The Chair, NDP, Jean Crowder]

Good morning, everybody. We're resuming our study on the access to information dispute and resulting court action concerning the CBC. I want to welcome Ms. Legault and Ms. McCarthy to this meeting.

Ms. Legault, you will have 10 minutes to present. Then we'll take questions. I know you're all experienced committee members by now, but I want to remind you that the time for your questioning includes the time for the response from the commissioner.

I'll turn it over to you, Ms. Legault.

[Suzanne Legault, Information Commissioner, Office of the Information Commissioner of Canada]

Thank you, Madam Chair.

My remarks this morning will be brief, if a little bit out of breath.

I will address three issues. First, I will review the origin and the current status of the ongoing court case involving the CBC and the Information Commissioner. Second, I will review the corporation's performance under the Access to Information Act. Third, I will review the situation in other jurisdictions as it relates to their public broadcasters and suggest possible changes to our own act, if the committee should choose to review the current legislative text as part of its deliberations.

First, let me introduce Ms. McCarthy, our new general counsel. She is currently acting as Assistant Commissioner, Complaints Resolution and Compliance.

The origin of the dispute between my office and the corporation dates back to 2009. My office was then investigating complaints regarding CBC's refusal to disclose records based on section 68.1 of the act. Section 68.1 provides an exclusion from the act for information relating to CBC's creative programming or journalistic activities. However, there is an exception to this exclusion for information relating to the general administration of the corporation.

In the course of our investigations we asked the CBC to provide us with information that had been withheld, so that we could assess whether its decision on disclosure was justified or whether the withheld information fell within the exception to the exclusion. The CBC refused to provide the relevant information, so my office issued a production order to the CBC in relation to certain complaints. That same day, the corporation initiated a judicial review application under section 18 of the Federal Courts Act, challenging my office's authority to obtain records they claimed were excluded under section 68.1.

The Federal Court dismissed the CBC's application for judicial review, and the CBC appealed that decision. The Federal Court of Appeal heard the appeal on October 18, 2011, and has taken the matter under reserve, which limits my ability to comment much further on the case.

Given the ongoing court process, my office has, up to now, suspended the investigation of 196 refusal complaints in which CBC has relied on section 68.1.

Some of these complaints date back to 2007. Given the age of some of the complaints, I raised a concern with this committee, in March 2009, that the failure to retrieve responsive records could have a negative impact on Canadians' right to access information.

I can report that since our last appearance on this matter, the CBC assured my office that it has started retrieving the records responsive to the complaints that have been put on hold, but it is still not confirmed that the CBC has identified and retrieved the responsive records in all cases.

Madam Chair, this morning, I submitted to the committee a brief statistical overview of the CBC's performance since it became subject to the act.

In sum, I can safely say that the CBC's performance has improved since it became subject to the act in 2007, but I still have serious concerns. Let me explain.

Since it became subject to the act, the CBC has received about 1,400 requests for information. Of those, close to 1,100 have resulted in complaints to my office. However, as you can see from the document I handed out this morning, the number of complaints relative to the number of requests has been declining steadily year over year. Last year, a special report highlighted that the CBC took an average of 158 days to process access to information requests and had a deemed refusal rate of close to 60%.

Although we have not verified this information yet, the CBC is reporting significant improvements on these numbers in its most recent annual report to Parliament, claiming 57 days on average to respond to requests, and a deemed refusal rate of 22% in the last fiscal year. If one goes on the CBC's website, one will see that they also claim an improved performance for this fiscal year, which is not completed.

Notwithstanding this progress in performance, I still have serious concerns. In addition to the cases currently on hold pending the outcome of the litigation, my office still has around 180 ongoing investigations with the CBC. It is my observation at this time that the current level of resourcing in CBC's access to information office is not sufficient to address the investigation of these complaints with my staff. If there is no change to the current resource levels, the situation will likely be aggravated once the investigations into the 196 on-hold complaints begin.

I'm also very concerned with the guidelines for the interpretation of section 68.1 recently published by the CBC. The guidelines state that an access to information request may be refused on its face by the person with the delegated authority if this person concludes that the requested information is excluded from the application of the act by virtue of section 68.1 on the sole basis of the wording of the actual access to information request. In my view, individuals with delegated authority to make decisions as to whether or not information falls within the exclusion found in section 68.1 must review the responsive records to make a valid decision under the act, including appropriate severances, as required under the act, to maximize disclosure.

It is therefore encouraging that the most recent statistics indicate that the CBC's performance is gradually improving. However, if the reason for improved response time to requests is that the CBC is not receiving and processing records in accordance with the act, as the recently published guidelines suggest, then the decrease in response time may not reflect an improvement in performance.

That said, my office has not yet had the opportunity to discuss the guidelines with CBC officials. I plan to do so shortly. Actually, it was while preparing my presentation for the committee that I learned about those guidelines, which are obviously a major source of concern for me. We will also follow up on the performance of the CBC in the next fiscal year, as part of our report cards process.

I've also tabled with the committee a review of the freedom of information laws in Australia, Ireland, and the United Kingdom as they relate to the coverage of public broadcasters. I've also included in that document suggestions for change, should the committee be interested in looking at our own act.

In a nutshell, the situation in the jurisdictions reviewed is that public broadcasters are subject to the freedom of information legislation; programming and journalistic records are covered by way of exclusions to their respective legislation; the oversight bodies have the power to review the records to determine the application of the exclusion; and they can order disclosure. In the U.K., the ability of the information commissioner to actually review the records was pursuant to a court decision as well.

I've also included possible changes to our own act, because as Information Commissioner--and as previous information commissioners have also advocated--I believe that exceptions to the application of the act should be limited and specific, and such exceptions should be injury-based. The wording of exceptions should be clear and objective, which is consistent with the existing provisions of the act.

Injury-based exemptions require that the public institution establish a reasonable expectation of harm, and support that claim with specific evidence. A discretionary exemption ensures that the public interest in obtaining access to the requested information will be considered by the head of a public institution, even where the information otherwise qualifies for exemption.

Madam Chair, I believe these suggested changes would be consistent with the purposes underlying the Access to Information Act and would protect the CBC's journalistic and programming independence.

I thank you for the privilege of appearing before the committee. I would be pleased to respond to your questions.

[The Chair, NDP, Jean Crowder]

Thank you very much, Ms. Legault.

Before we turn to the first round of questioning, I would like to thank Ms. Davidson for filling in for me last week, and I want to turn to the clerk for an update on the presentation the Canadian Taxpayers Federation made to the committee.

[The Clerk of the Committee, Mr. Chad Mariage]

Thank you, Madam Chair.

In response to the request made by Mr. Andrews, Mr. Thomas has submitted his six requests of the CBC to me--they're pretty lengthy--in addition to the responses he received from the Information Commissioner, and all documentation pertaining to those requests. It's in translation and I will endeavour to get it to members as soon as possible.

[The Chair, NDP, Jean Crowder]

Great. Thank you.

Now for the round of questioning, we'll begin with Mr. Angus for seven minutes.

Mr. Angus.

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

Thank you.

It's excellent to have you come back again, Madam Commissioner, to our committee. Of course, you know we all have great respect for your work, and you've been very instructive in terms of what you think should be covered under information and how it should be covered.

I'd like to ask you a few questions, because as we try to work our way through the questions of exclusions for CBC, we're also in the midst of what the media has called a dirty war between CBC and its number one competitor, Quebecor. It's been rather difficult to find out if what we're dealing with is in the public interest here or actually an attempt to undermine the legitimacy of a public broadcaster in Canada.

I'm looking at the complaints from 2007-08 up to 2011-12. I understand that over 80% of the complaints came from one source. Is that correct?

[Suzanne Legault]

It varies from year to year.

I compiled the statistics, actually, before this morning's committee meeting, and overall, for the CBC over the five years, most of the complaints, 83%, came from business, and that represented six complainants. In 2008-09...I don't really have the data for 2007-08 because we were capturing statistics differently, but certainly that year CBC did receive a very high number of requests in a short period of time. But in 2008-09, 90% of the requests to the CBC came from business as a category, and that was 90% of the total amount of complaints. The only year that's an outlier is 2009-10, and that's because I initiated a few myself that year against the CBC, so that changed the actual percentage.

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

You said 90% came from business—

[Suzanne Legault]

In 2008-09.

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

I'm looking at one year, September 2007 to March 2008; there were 485 requests, 88.7%. Do you have a breakdown of how many businesses, or was the vast majority from one business?

[Suzanne Legault]

It would be very, very high. We're not supposed to disclose the identity of the requesters, nor of the complainants. There are very strict confidentiality provisions. I can say that in that first year, certainly, it was 90% that came from one or two complainants, who were from business.

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

Okay, I see.

I think that's important, because again, we're trying to establish whether CBC is being accountable to the taxpayer or if CBC is being undermined in a campaign by their number one competitor. Our information shows that over 80% came from Quebecor. Mr. Péladeau has made no secret of his deep opposition, and uses his newspapers across the country to demand that CBC be put out of business.

I only want to have a context for that, because I'm also interested in the issue of the exclusion. I'm looking at the 2006 Information Commissioner's report on the exclusion, and it's interesting that the government took a very different line than they're taking now. In the response to the government's action plan for the reform of Access to Information Act, on page 6:

It is the position of the government of Canada that the Information Commissioner may not examine information which the government claims to fall within an exclusion.

Is that still the government's position as far as you know?

[Suzanne Legault]

I don't know the government's position in this respect, Madam Chair. Obviously, our position is the position we have before the court, that we still have the right of oversight and therefore the right to subpoena records so that we can determine whether or not the records fall within the exclusion or within the exception.

What the government's position is, I really don't know.

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

Okay.

This is their position in 2006. They are categorical that the Information Commissioner may not examine records that fall within an exclusion. On June 19, 2006, at this very committee, Vic Toews, who was then President of the Treasury Board, said:

I was somewhat surprised when I found out that the implications of the Information Commissioner's recommendation would be that CBC journalists...would have to disclose their sources and that it would be the Information Commissioner who would then determine whether or not those sources should remain confidential. I found that, quite frankly, shocking.

It seems that our colleagues on the other side have twisted themselves upside down, because I think Minister Toews' position is a reasonable one in terms of an exclusion. The CBC should have some level of protection of its sources to maintain its integrity as a news unit and as a competitor in a mostly privatized landscape.

Would you agree with Vic Toews that the CBC should be able to have exclusions to protect its journalistic integrity?

[Suzanne Legault]

What I do believe in terms of access to information is that the act provides for adequate protection. I also review informants' names and locations in very confidential national security matters, top secret matters. The office is there as an oversight body. The documents are reviewed in a very secure manner, and decisions made within my office lead to recommendations to the entity. They still have the opportunity, if they disagree with my recommendations, to present their case to the court. That's the way our system works.

I think it is a fundamental tenet of freedom of information and of that right, nationally and internationally, that there be the right of independent oversight. In fact, I advocate all the time that I should have oversight over cabinet confidences as well, for the same reasons.

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

That's what I want to go to now. Again, I'm just trying to clarify the position here, because Vic Toews called for an exclusion for the CBC to protect journalistic sources.

Yet we see that the government has called an exclusion for anything that has to do with covering the rear ends of any of their ministers and any of their departments, and they went as far up the court chain as they could.

On the implications of allowing government to exclude documents based on ministerial privilege, what effect do you think that has on our ability to actually create an accountable system for the public?

[Suzanne Legault]

As I said, I think there should be, as a matter of principle, broad coverage. I think ministers' offices should be covered. I think anywhere public funds are essentially being administered and spent should be covered by access to information legislation.

I think that in most instances, if not all, the exemptions should be discretionary, which allows for a harms test and a public interest analysis. I think that provides adequate protection for the most confidential of information.

What it does is allow for independent oversight. It also allows for a case-by-case analysis, which takes into account the public interest, and that is consistent with modern principles of access to information internationally.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Angus. Your time is up.

We'll go to Mr. Del Mastro for seven minutes.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you very much, Madam Chair.

I want to go back to something you said off the top, Madame Legault. You said that originally the court action was initiated by CBC. Is that correct?

[Suzanne Legault]

That's correct.

[Dean Del Mastro, Conservative, Peterborough, ON]

In that court action, just so the committee has a proper backdrop, what you were actually seeking was to have oversight of the documents so that you could determine whether section 68.1 applied or not. Is that correct?

[Suzanne Legault]

That's correct. Essentially, we sent a request for the documents, a subpoena for records, so that we could get all the records, all these complaints that are subject to the production order.

Then we review all the records and determine whether we agree with the institution, in this case the CBC, on their application of everything under the act that's exempted or excluded. That's the way we do our work.

Then we seek their representation. The onus is on the institution, by the way, to make the case as to why the exemption or the exclusion should apply in the case. Then we make recommendations. We usually agree. I mean, 99.9% of the time we reach an agreement with the institution. We have only four cases in court, and last year we closed 2,100 cases.

[Dean Del Mastro, Conservative, Peterborough, ON]

I'm going to play devil's advocate with you for a minute, so bear with me. In case anybody's ever going to quote me on this, I'll be sure that I said I'm playing devil's advocate with you.

You're not in the broadcast business. You don't know anything about broadcasting. How would you know if any of these three exemptions apply or not? As the CBC, we don't trust you to be able to determine if 68.1 applies or not. Therefore, what we have determined, and what we're going to make clear in the guidelines, is that we might just deny applications on their face, because we are the broadcaster. We know what applies. We think 68.1 is clear in what applies or not. Therefore, we're prepared to go to court. In fact, we're prepared to go to court until we get the court decision we like, not just any court decision. We're going to go to court until we get a decision we like.

That I think is largely the CBC's case in saying that you're not qualified to determine if 68.1 applies. Your office is not qualified because you don't understand broadcasting. Do you feel that your office is qualified to make determinations under 68.1?

[Suzanne Legault]

I'm also not a former general who worked in Afghanistan. I'm also not somebody who worked in a crown corporation. I'm not a trade lawyer or a patent lawyer, and yet my office has been trusted since 1983 to make decisions about these cases. Luckily, I'm not the only person in the office, and I rely heavily on people like Ms. McCarthy. We also hire experts as required.

There is no question that these new provisions are breaking new ground. We're going to have to determine what the scope of these words mean. Creative material is a pretty broad concept, as is some of the wording surrounding it. But these concepts are in the Broadcasting Act. I don't have the power to order disclosure. I can only make recommendations. The institution still has the option to disagree, and if they disagree and refuse disclosure, we can then determine the matter in court.

I've said from the beginning, and it was in my special report last year, that these new provisions will lead to litigation. That is a given. This first case is about a procedural matter. It's not even a substantive case so far.

[Dean Del Mastro, Conservative, Peterborough, ON]

You've made the case for changes to section 68.1 or suggested that we might want to look at that. Konrad von Finckenstein had similar comments. Justice Boivin, in his verdict, had similar comments.

If we were to look at a rewrite of section 68.1, whereby we were to make sure that journalistic sources are protected, and we understand what that means—and the Supreme Court has been clear on this—but eliminated the balance of the protections, do the court cases continue or do they end?