Thank you, Mr. Chairman.
I'd like to assure the members that if they don't have sufficient time to question me on this important piece of legislation, I'd be happy to return at any time.
Mr. Chairman, honourable members of the committee, it is an honour for me to appear before your committee this afternoon to speak to private member's Bill C-461. I have provided committee members with a backgrounder describing the contents and the need for Bill C-461, the CBC and public service disclosure and transparency act.
Members, the bill has two purposes. The first is to correct a deficiency within the current section 68.1 of the Access to Information Act, which provides an exclusion for information under the control of the CBC relating to journalistic, creative, and programming activities. However, this exclusion is then subject to an exception for matters of general administration.
This confusion of an exclusion thereafter limited by an exception led to litigation between the Information Commissioner and the Canadian Broadcasting Corporation, with both the Federal Court and the Federal Court of Appeal siding with the Information Commissioner, reaffirming her right to review decisions regarding access. The courts indicated that the drafting of section 68.1 was “not a model of clarity”, and moreover was a “recipe for controversy”.
I agree with this assessment, and so does this committee. In March of 2012, this committee tabled a report after a study of section 68.1 of the access act, and accepted the Information Commissioner’s recommendation that section 68.1 of the access act be repealed and that the exclusion be replaced with a discretionary exemption.
Private Member's Bill C-461 reflects the recommendation of this committee by providing a discretionary exemption on an injury- or prejudice-based test. Accordingly, any Canadian Broadcasting Corporation document that, if released, could reasonably be expected to prejudice the corporation’s journalistic, creative, or programming independence ought to be exempt from disclosure.
At second reading on this bill, members of the official opposition claimed that this legislation was somehow an attack on CBC.
Members, I assure you, it is not. In fact, this legislation is not about the CBC so much as it is about transparency and accountability.
The discretionary exemption based on an injury test approach expressly acknowledges that a public broadcaster must enjoy a degree of independence from government. But the Information Commissioner is not part of government; she is an officer of Parliament. I fail to see how allowing her to review decisions of the CBC regarding access to information requests constitutes an attack on the broadcaster. Similar to our collective roles as members of Parliament, the Information Commissioner plays an important role in holding government to account.
The second purpose of the CBC and public service disclosure and transparency act makes a substantive alteration to the Privacy Act. In removing the words “range of” before the word “salary” in the definition of exempt “personal information” in the Privacy Act, this legislation, if adopted, will allow for specific salary disclosure for the highest wage earners in the federal public service.
Currently only ranges of salaries are subject to disclosure, which is, I submit, adequate for low- and middle-income levels, but at the highest levels of income, the increments become so large as to become virtually meaningless.
For example, I have been advised that the current CEO of the Canadian Broadcasting Corporation earns in the range of $363,800 to $428,000. That range is $64,200, larger than the average taxpayer’s salary, and therefore, in my view, does not constitute meaningful disclosure.
Accordingly, if Bill C-461 is adopted and not amended, the specific salaries and responsibilities of upper management—defined in this bill as the lowest level of deputy minister, DM-1, and higher—will be subject to access to information requests, specifically salary disclosure.
This is important: this change would apply to the entire federal public service, all government institutions that are subject to the Access to Information Act. CBC is in no way being singled out.
The bill also expressly provides for disclosure of reimbursed expenses for all employees in a government institution.
Mr. Chairman, the government has signalled its intent to amend Bill C-461. With your consent, I would like to address both proposed amendments, although I appreciate that they have not yet been tabled.
The first is with respect to journalistic source protection. Some have argued that journalistic source protection is so sacrosanct that an absolute exclusion must be maintained.
I absolutely agree that it is important that a public broadcaster, any broadcaster, be able to assure its confidential journalistic sources that their identity will not be disclosed. But I dispute that an absolute exclusion is either appropriate or practicable.
Firstly, the Information Commissioner has unlimited power under section 36 of the Access to Information Act to compel production of such documents and things as she deems requisite to the full investigation and consideration of the complaint. Moreover, under subsection 36(2) of the access act, it provides that no document can be withheld from the Information Commissioner for any reason.
Accordingly, I am skeptical that an exclusion can be drafted that could coexist with the Information Commissioner’s seemingly unfettered powers to compel document production. Members will recall that the current attempted exclusion in section 68.1 was the basis for protracted litigation between the Information Commissioner and the CBC.
Moreover, as the Information Commissioner herself testified when she appeared in front of this committee on March 8 regarding the estimates, journalistic source privilege is not absolute. The Supreme Court of Canada said so recently in its 2010 decision of R. v. National Post. The court held that journalistic source privilege is not a class privilege; it is fact-specific and therefore must be examined on a case-by-case basis to determine if and when it applies.
Who is to determine if Professor Wigmore's four-pronged test, which has been supported by the Supreme Court, is satisfied if the CBC is to be granted an absolute exclusion? The obvious answer is nobody. Is CBC to be made both judge and party to access to information requests? Certainly not.
As the Information Commissioner testified here two weeks ago, decisions of information officers must be reviewed, and as the Federal Court said in the Canadian Broadcasting Corporation v. Canada (Information Commissioner), “Disclosing records to the Commissioner does not amount to revealing them.” This is an important point. Members should not be misled into believing that having the Information Commissioner review documents will somehow lead to their disclosure. The Information Commissioner will recommend against disclosure when CBC has been able to demonstrate injury or prejudice.
The second matter that the Parliamentary Secretary to the Minister of Justice signalled the government wanted to amend was the benchmark at which federal public service salaries would become subject to disclosure. The parliamentary secretary indicated in the House that the government believes that the highest level of DM-4 would be a more appropriate benchmark than the lowest level of DM-1. In real dollar terms, amazingly this would move the disclosure benchmark from $188,600 to $319,900.
However, this is not the entire story. As senior public servants are entitled to maximum performance awards, otherwise known as bonuses, it is conceivable that at the DM-4 level, the said mandarin could earn a maximum performance award of up to a further 39%—although it would be discretionary. According to my math, if a DM-4 earns $319,900, plus a maximum bonus of 39%, which is $124,761, his entire compensation would be $444,661. However, if the government is successful in amending this piece of legislation, taxpayers will only be mindful that the DM-4 earns in the range of $272,000 to $319,900.
Members of this committee should ask themselves, does this constitute meaningful disclosure? In my view, it does not, and I strongly recommend that members resist the government’s attempt to gut this bill.
Mr. Chairman, in conclusion, Canada has had access to information legislation in force since 1983. Canada was once a leader in providing access to government information and documents, but sadly, we are becoming laggards. Internationally, we are currently ranked 55th out of 93 countries in terms of our access laws. Moreover, the Centre for Law and Democracy, a think tank, says that Canada is falling behind all of the provinces and ranking behind most of them in terms of openness. Ontario, British Columbia, Saskatchewan, Manitoba, and Nova Scotia all have salary disclosure legislation that is more transparent than this proposed bill, even if you pass it unamended.
Mr. Chairman, in March 2004 a former government announced new policies that mandated publication of all contracts with the federal government over $10,000. I find it irreconcilable that proprietors and companies who contract with the Government of Canada for as little as $10,000 will have their names and contracts published on a public website, but that a senior federal executive or public servant earning over $440,000 is protected by Canada's privacy laws.
Members, again, I invite you to resist the government’s attempt to remove both the heart and the teeth of this private member's bill.
Transparency and disclosure allow taxpayers to compare the performance of an organization to the compensation given to the senior people running it. It allows taxpayers to know how their tax dollars are being spent. By allowing disclosure, the public will serve as a critical check on government expenditures and an effective deterrent to any government department or official tempted to treat taxpayers disrespectfully. Transparency, admittedly, is seldom in the interest of the government; however, it is always in the interest of the taxpayers whom we, as members of Parliament, represent.
Bill C-461, the CBC and public service disclosure and transparency act, promotes open and transparent government and holding government to account. It is also a small step, albeit a very small step, in improving the federal government's growing reputation for opaqueness.
Exclusions for government information prevent Canadians from holding their government to account, which is fundamental to democracy. Knowledge is power, and holding government to account demands that knowledge and information be available to Canadians. Holding to account leads to the establishment of trust—trust that there is proper stewardship over public resources. Opaqueness, however, leads to mistrust, or at the very least suspicion that there is not proper stewardship of public resources. Accordingly, any attempt to weaken this bill and its attempt to increase access to information and transparency will lead to mistrust and suspicion.
As U.S. Supreme Court Judge Louis Brandeis famously said that sunlight is the best disinfectant.
Mr. Chairman, Canadians deserve to have the light shone on government and government information, and I encourage all honourable members of this committee to pass Bill C-461.
Thank you, Mr. Chairman. I look forward to members' questions.
