Information & Ethics Committee on Oct. 25th, 2011

[Suzanne Legault]

I think there will be court cases on these provisions. That has been the experience in the U.K. The language that I proposed in the handout I gave you is an injury-based, discretionary exemption. I've kept to the language of the Broadcasting Act, so that we mirror what exists. The difference between what we have in the current legislation under 68.1 versus the Broadcasting Act is that the Broadcasting Act deals with creative programming and journalistic independence, whereas our act deals with any activities related to these three concepts. That's a lot more broad in concept, it seems to me, than what the Broadcasting Act states and what these provisions should be capturing. We should be dealing with protecting the journalistic independence of the CBC.

[Dean Del Mastro, Conservative, Peterborough, ON]

Which is why CBC is essentially making the argument that 68.1 applies to everything, and that they will seek to define it in the courts since it's not defined in the act.

[Suzanne Legault]

Most of the time in our cases, we reach an agreement with the institution. As part of our interactions with the institutions, we listen to their representations. They make representations in writing. A lot of them are well educated and well informed. We listen to their recommendations, and most of the time we come to an agreement. I don't expect that it would be anything significantly different with the CBC as we move forward with the interpretation of the words in that section. At this time, pending the court case, we're just not seeing any of the documents. We haven't even started this discussion with the CBC at all. We can't.

[Dean Del Mastro, Conservative, Peterborough, ON]

The Taxpayers Federation said that since they don't have answers, they're not asking any more questions. Is that why you have concerns about why they're showing some improvement?

[Suzanne Legault]

No. They are getting fewer requests and complaints. One thing's for sure: they used to get a lot of requests because they weren't responding on time or because they were charging a lot of fees. Those administrative complaints seem to have abated significantly, and that's great because now they can deal with their actual substance. This is the message I give to all institutions, by the way, and these admin complaints are coming down system-wide because of that.

This is what concerns me: they seem to get a request, and on the mere wording of the request, they make a decision on the application of 68.1—without retrieving the records, without going through the relevant pages of the records, and without using this evidence to decide what is disclosable as an exception, under general administration, to the exclusion provision in the act. They seem, based on these guidelines, not to be doing that work. I'm concerned about that, especially in the context of not having any decision on 68.1, on the substance of this so far. They're making those decisions. The other thing—

[The Chair, NDP, Jean Crowder]

Could you please wrap up, Ms. Legault? We're well over time.

[Suzanne Legault]

I'm sorry.

[The Chair, NDP, Jean Crowder]

Thank you.

Mr. Andrews, go ahead for seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Thank you.

Welcome again, Commissioner. It's a pleasure to see you.

Just to carry on regarding the rewrite of section 68.1 and your suggestion to change it to an injury-based exemption, is that the only rewrite you see required in section 68.1? Do you think rewriting it this way will help solve this problem? Just explain it a little bit. I know you've attached some background from some other countries as well. Could you just explain that a little further?

[Suzanne Legault]

The other countries I've mentioned all have exclusions. That's why I think, when the Federal Accountability Act came into effect, section 68.1 was drafted as an exclusion. I don't know. In French, I wasn't

dans le secret des dieux, or in the know, as they say.

I wasn't behind the scenes with the government when this was drafted, but it seems as though it followed an international model. Although I like the international models most of the time, in this case, I don't see the necessity for an exclusionary provision. I think an injury-based exemption would be sufficient. It actually allows the institution to say, “Well, this information is covered by this exemption, and if it is disclosed it will lead to the following harm, i.e., it will lead to the disclosure of journalistic sources that must be protected.” But it also allows for, in some instances, a public interest analysis, which says, “Well, yes, there is a harm, but is the public interest in disclosure greater than the harm?” That's the analysis you go through when you have an injury-based discretionary exemption. That's what I think would be appropriate in this case. But internationally I would be the outlier, certainly, in terms of the models that exist right now.

[Scott Andrews, Liberal, Avalon, NL]

So that would be the only change to that?

[Suzanne Legault]

It's a pretty significant change.

[Scott Andrews, Liberal, Avalon, NL]

Okay.

We talked a little earlier about the number of requests the CBC has gotten and their failing report card grade. Is it fair to say that if someone put in 100 requests on one particular day, that would automatically give them a failing grade?

[Suzanne Legault]

It depends how they would treat them. Citizenship and Immigration Canada receives something like 14,000 requests every year. They have a great report card. They do very well in the treatment of their requests. But most institutions, if they unexpectedly receive 100, 200, or 300 requests in one day, will not be able to absorb them, so there will be administrative complaints. They will be out of time. They will be outside of the delay prescribed in the legislation. That leads to complaints, and that really tends to bog down the institution. That is what happened to the CBC in the first year. And then they had all the complaints from my office. It also bogged down my office that first year, in 2007-08, for sure. So that's the result of that.

CBC is not the only institution that has a high number of requests by some requesters. The Canada Revenue Agency and other agencies seem to be targeted sometimes. “Targeted” is the wrong word, but they seem to have frequent requesters who specialize in certain departments. The Privy Council Office will have a couple of requesters. It's the same for Canada Revenue Agency and National Defence. Some journalists, for instance, specialize in certain areas, and they make their requests with certain departments. So the situation at CBC is not unusual. It does happen to other institutions for sure.

[Scott Andrews, Liberal, Avalon, NL]

Okay.

When you look at all the other institutions—and I know you're familiar with them—CBC does some proactive disclosure on its website, so that any requests it fulfills automatically get put up on their particular website. That's not common amongst all departments, is it?

[Suzanne Legault]

Following our recommendations to Treasury Board Secretariat a couple of years ago, in the CAIRS investigation, by December, I believe, it's going to be mandatory for all institutions to post all access to information requests. It's part of the government's open government platform. A few institutions do it now, and many more will be doing it by the end of this fiscal year.

[Scott Andrews, Liberal, Avalon, NL]

By the end of this year, all government departments will have to—

[Suzanne Legault]

They're supposed to.

[Scott Andrews, Liberal, Avalon, NL]

Okay.

I've gone to the CBC one and I found learning about the different requests quite interesting. You don't know who the requester is, but you see the information.

[Suzanne Legault]

Yes, I went on that last night too. I wasn't sure whether all the requests were posted.

They seem to post certainly the documents of the requests that they deem will be of public interest. I'm not sure they have a full access request log, which is what's going to be required by institutions.

[Scott Andrews, Liberal, Avalon, NL]

Who will be monitoring that format by the end of this year? Will that be your office?

[Suzanne Legault]

No. Normally, I guess, because it's something the Treasury Board Secretariat is putting forward now, they would be looking at how that is being implemented throughout the institutions.

[Scott Andrews, Liberal, Avalon, NL]

And in your opinion that's a good thing.

[Suzanne Legault]

It follows our recommendation.

[Scott Andrews, Liberal, Avalon, NL]

Good.