Information & Ethics Committee on Oct. 20th, 2011

[Dean Del Mastro, Conservative, Peterborough, ON]

That's right.

I would argue that, whether in the case of government departments or otherwise, it makes them better, doesn't it? That's why it exists. In fact, that's what one of the witnesses said: accountability and so forth—

[Col Michel W. Drapeau]

And that's what the Supreme Court said.

[Dean Del Mastro, Conservative, Peterborough, ON]

—can only serve to improve things.

You said that in your opinion CBC may have gone, or perhaps you said is going, beyond protecting its journalistic and programming integrity.

In your opinion, should such things as meal receipts, the size of their fleet, the cost of maintenance of their vehicle fleet, and so forth be exempted under section 68? It seems to me that the CBC's approach has been to say: everything is under section 68.1, and we will maintain that position until somebody says it's not.

[Col Michel W. Drapeau]

I'll give—this may be a surprise to Mr. Angus—a very generous answer to your questions. It might, because the very records that you are asking....

No institution has the duty to create a record in response to an access request, so the records they have may contain hybrid information—some journalistic information, some information on programming. It may well be that CBC has purchased high-definition trucks for the purpose of covering some sports events, and in doing so they would be able to sell or lease their equipment for this purpose to other news. That information may be protected under programming. I have no difficulty with that.

What I have difficulty with is the CBC's becoming the judge for itself of what needs to be protected. It's too easy then to say that all of it falls under this particular scenario.

Let the Information Commissioner have a look at it. If it's wholly programming or journalism, it will be occluded; if it's hybrid, it will also be occluded. So be it.

My point is, the CBC has nothing to lose, except enhancing its credibility as someone respectfully applying the access to information law in response to requests from Canadians.

[The Vice-Chair, Conservative, Patricia Davidson]

I'm sorry, your time is up, Mr. Del Mastro.

We will now go to Mr. Lamoureux for seven minutes, please.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Madam Chair.

I appreciate your quickness in responding with answers. Let me take a slightly different approach, Mr. Drapeau.

If you look at other independents, such as CTV—and I'm trying in my own mind to establish, because we want to do the right thing here, what is and is not appropriate—is there more of an obligation for CBC to provide detailed information about the running of its stations and so forth than for CTV, and if so why?

[Col Michel W. Drapeau]

The answer is absolutely. CBC is now subject to the act for one overriding reason: they get a billion bucks from the Canadian taxpayers. If they did not, they would not be subject to the act. The legislators—you—have put the CBC under the act from September 1, 2007.

That's it. If you're going to get money on one hand from the public purse, then you have a duty to account and a duty to disclose to the Canadian public. That's democracy at work.

The CBC has a choice: it can say we're no longer going to be subsidized by the Canadian taxpayer. CTV is not a federal institution, not a crown corporation, not subject to the act. That's the basic difference.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

But would you acknowledge that there is a need to keep some information in confidence?

[Col Michel W. Drapeau]

Absolutely.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Do you have in your mind something that you can share with the committee as to what things, in your opinion, warrant CBC's being able to keep them in confidence and not have to disclose?

[Col Michel W. Drapeau]

Unfortunately, the law as drafted in Canada and the U.K. and Australia—they have almost the same wording—has left it to the court to decide what is journalism and what is programming, and in the U.K. what is art and what is literature. This hasn't been done yet.

But as a reasonable person, any number of us here would see a document and say this is clearly something to do with journalism—a report, sources, whatever—and that ought to be protected. The Supreme Court says it should be. And whether you're with CTV or Sun Media or CBC, it has to be protected. I have no argument there.

Some of it, such as programming, may be more problematic to decide—certainly what is artistic is something else again—but in the final analysis, these will be areas of dispute. Not every one of the requests for which CBC calls for an exemption will come under section 68.1; some of them will fall into a grey zone. And the grey zone I refer to is the case in which it's information of a hybrid nature: some of it is protected, some is not.

You need to have an independent and objective somebody to make that decision. The court has agreed that the Information Commissioner is that person. Parliament has decided that this is the person too. The Information Commissioner can look at a complaint by a requester, look at the record, and then issue a recommendation—not an order to disclose, but a recommendation—either to disclose or not disclose.

If that were to happen, we wouldn't be here.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I would think that it's open to the potential for abuse by competitors, in the sense that this is something that is required of the CBC and not of its competition. There are those in Canadian society who would like to see the demise of the CBC, quite possibly some of the members right across this table from me.

At the end of the day, do you see that there is the potential for abuse, in terms, some would argue, of harassment of the CBC in trying to perform its responsibilities as prescribed through the act?

[Col Michel W. Drapeau]

You raise three points. Let me address them be in the reverse order.

Concerning demise, you have somebody here who's a fan, an admirer, and a supporter of the CBC. I think they add considerably to the fabric of the nation. They have done so, and I hope they continue to do so.

At the same time, I'm a taxpayer. As a taxpayer, I need to know and I have a right to know, and it's a quasi-constitutional right. If somebody goes through a formal process of requesting, CBC has all the tools and all the exemption at its disposal to redact what needs to be redacted. But in the fullness of time, in accordance with the delay specified in the act, it should release the information.

It may not be I as an individual who am requesting this information. Perhaps members of Parliament might be; the Library of Parliament might; people from outside the country could—or competitors. Well, we live in a very competitive world, and you could say the same, if not about the CBC, then about other crown corporations. The fact that somebody asks—and the court has looked at this frequently, in the air transport regime, for instance, when allegations were made that this was only to embarrass them, only to provide information to a competitor.... The act itself is beautifully synchronized and structured to provide for information to be protected and privileged.

Whether a competitor asks for it because they have the motivation to do so—or somebody alongside, an association or something else—who cares? The court says motive or purpose has nothing to do with it. You cannot modify the documents and the records therein only because your competitor asks for it. In fact, you should not know who asked for it. You are asked, you release it, it becomes part of the public record, we all become informed about it. That's the way democracy works.

[Scott Andrews, Liberal, Avalon, NL]

I'm sorry I was late. I offer my apologies.

Since 2007 you have filed over 800 requests of the CBC. Is that fair to say?

[Col Michel W. Drapeau]

We've filed a number. It's probably in that range. I wouldn't swear to the 800.

[Scott Andrews, Liberal, Avalon, NL]

How many of those requests would you have sent in to the CBC at one time?

[Col Michel W. Drapeau]

It might have been eight or nine.

[Scott Andrews, Liberal, Avalon, NL]

Eight or nine; but it would have been no more than that?

[Col Michel W. Drapeau]

I can't think it would be more than that.

[Scott Andrews, Liberal, Avalon, NL]

We find that a lot of comment is that the CBC has gotten so backlogged on their freedom of information requests because of the volume that comes in at one time. And that's not fair to the CBC, to accuse them of failing to respond—

[Col Michel W. Drapeau]

And it's not fair to me if you don't allow me to answer the question, because in fact I'm happy that you've asked it. Why was such a high number of requests submitted? It's because we're good at it and we know how the system works.

[Scott Andrews, Liberal, Avalon, NL]

One other question. Are you employed to file those requests on behalf of the companies?

[The Vice-Chair, Conservative, Patricia Davidson]

Mr. Andrews, your time is up. We'll allow Mr. Drapeau to answer, please.

[Col Michel W. Drapeau]

When we submit requests.... An uninformed and inexperienced requester would submit a request and say, “I want everything that corporation X has published in 2007”. I tell you what, his request probably addresses 20,000 documents, and it probably costs $10,000 worth of search fees. We don't do this. We like to ask for documents concerning a specific event on a specific date for specific purposes. And we'll put another request. So in some ways we're helping, in this case, the CBC in having very targeted, very limited, very precise requests: “We would like to have a copy of the board of directors meeting on October 4, 2000”, whatever. That's it. So the volume should not be of significance here. The significance is what records are responsive to this request.

[The Vice-Chair, Conservative, Patricia Davidson]

Thank you very much, Mr. Drapeau.

We'll now go to Mr. Carmichael for seven minutes, please.