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.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

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of the access act, and accepted the Information Commissioner’s recommendation that section 68.1 of the access act be repealed and that the exclusion be replaced with a discretionary exemption.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.

[The Chair, NDP, Pierre-Luc Dusseault]

Welcome, everyone. Welcome to our 80^th meeting.

Pursuant to the Order of Reference of Wednesday, March 27, and the motion adopted by the committee on Monday, April 22, we are undertaking our study of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information).

We are already a bit late, and there will be a further delay later.

We have a witness here with us. This is Mr. Rathgeber, the sponsor of the bill.

Thank you for being here.

The commissioner will not be here, because of the lack of time. However we will have the opportunity of hearing our witness today, if the committee agrees.

You have a point of order, Mr. Angus?

[Suzanne Legault]

Mr. Chair, honourable member, we are preparing a written submission that we would like to present to this committee when the discussion starts on Bill C-461. We will put in there essentially the history of what has happened in terms of the current provisions in the legislation since it came into effect in 2007.

We will explain in there as well what happened really in the court cases, because the court cases were not about the substance of that provision; they were really about the fact.... CBC was arguing that because it was an exclusion, I did not have the right to review the records that were the subject of the complaints. That's why we ended in court.

So in all that period of time, from 2007 to February 2011, or perhaps it's November 2011—anyway, it's in 2011—I was not able to see any of the records related to these investigations. Subsequent to the Federal Court of Appeal, we were able to start collecting the records and to start doing the investigations.

What we will present to you will have an explanation of the differences between an exclusion and an exemption, and the different types of exemptions, not only in relation to the analysis for disclosure but also in relation to the powers of the commissioner when you have an exclusion or an exemption.

The other thing I will be able to provide to the committee is the fact that since 2007, we have looked at close to 1,200 cases in relation to CBC. We have 200 remaining. Out of all of those cases, no case has dealt with journalistic sources. I think that's an important fact to know when we consider possible amendments to the act and possible additions of exclusions.

My personal view as Information Commissioner, after something like six years now at the OIC, as assistant commissioner, as interim, and as commissioner, is that I do not support exclusions to the application of the act as a matter of principle. I really profoundly believe there should be independent review of government decisions on disclosure. That doesn't mean the information gets disclosed. We can still decide and recommend that the information should remain protected, as we do many times in terms of personal information or national security matters.

National security matters are the subject of a discretionary exemption under the act. There has not been any issue with the OIC's review and investigations and recommendations in relation to national security matters. I do not believe there should be a different perspective on documents that are located in the CBC. Journalistic source privilege is something that is protected in law as it is.

So this—not so briefly—is sort of my initial perspective on that. We are planning to provide a written document to the committee that will go through all of this information, because I think it's actually quite complex.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thanks very much, Mr. Chair.

Thanks, Commissioner and Ms. Michaud, for being back with us again today.

We're going to have a shortened time with you, so I'll get right to my question.

I'm sure you've been following what this committee does, and you probably know that Bill C-461 has been introduced in Parliament and referred to this committee after second reading. That bill amends the current exclusion for the CBC.

I know we've talked about this before. Can you please tell us a little more about your views on the current exclusion under the act?

Economic Action Plan 2013 Act, No. 1

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, I would like to extend a warm thank you to my colleague for her welcome at the start of my speech. I must say that she is very tolerant, because she was quite hidden behind a barricade.

Her question is entirely in keeping with her conscientiousness and her meeting, yesterday, with people who were concerned about journalistic freedom of expression. It is crucial.

All journalists have the right to hope for access to an objective desk and to tell stories that reflect reality as they perceive it in their work. It is extremely important and worrisome to see that it is not just on environmental issues that we look like dunces on the international scene; we look bad on this issue, too.

The bills that have been introduced recently, including Bill C-461, clearly stem from a narrow-minded vision, a relentless attack on a corporation—

CBC and Public Service Disclosure and Transparency Act

[The Speaker, Andrew Scheer]

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-461 under private members' business.

The House resumed from March 26 consideration of the motion that Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), be read the second time and referred to a committee.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, I thank all hon. members from all sides of the House who have participated in the debate regarding private member's Bill C-461.

Let me start by dispelling some of the concerns from my friends from the New Democratic Party. This bill is not an attack on the CBC. I wish they would assess the statute on its face rather than developing conspiracy theories as to why we are promoting it.

Section 68.1 of the current Access to Information Act has been determined by two courts, including the Federal Court of Appeal, to be unworkable. It creates an exclusion and then an exemption to that exclusion, which is a recipe for controversy. It led to expensive litigation and ultimately the Federal Court of Appeal and the federal trial court agreeing with the Information Commissioner that the Information Commissioner must be able to see the documents in order to determine whether disclosure is appropriate.

I listened intently to my friend from Halifax, who did actually read the bill before she spoke. She was curious as to why an exclusion is not the best way to protect the independent broadcaster. The reason is quite clear. It is section 36 of the Access to Information Act that sets out the powers of the Information Commissioner, and they are broad. She may summon and enforce the appearance of persons. She may receive affidavits, take evidence on oath, and she can compel the production of documents. More than difficult, it is borderline impossible to create an exclusion that could coexist with the broad powers of the Information Commissioner that are set out in section 36.

What is the way to balance the rights and needs of an independent public broadcaster and the law that says the Information Commissioner ought to be the one to arbitrate disputes? It is the prejudice test. I did not make up the prejudice test. The prejudice test was cited by the Information Commissioner before the access and ethics committee when she testified at its study on section 68.1. Section 68.1 is so flawed that a standing committee of Parliament did an entire study on it. The Information Commissioner recommended a prejudice test, such that if it can be shown that release of the documents would be injurious to a party's independence then disclosure is inappropriate.

It was interesting to hear the comments from the member for Winnipeg Centre. He talked about what cabinet would think about this bill if it came to committee. Then we heard from the Parliamentary Secretary to the Minister of Justice that the government was going to propose amendments to the bill. They do not want to disclose the salaries of DMs 1, 2, 3 and 4 or the comparable salaries of any other government appointments. If I were a member of the opposition, I would think very seriously as to why the government was going to propose amendments to this bill to exclude all income levels under and less than the DM 4 level.

With respect to this bill, my friend from New Brunswick had the most sage speech. As many members know, he was the former director of the Canadian Taxpayers Federation and understands very well that the concepts of transparency and openness are fundamental to democracy. We in this chamber are members of Parliament. Our job is to hold the government to account; that is, the departments, the agencies and the crown corporations. We cannot hold government to account when government institutions withhold information from us or from other agencies or from other Canadians who are requesting it. Knowledge is power and the only way we can get knowledge is if we have access to the information.

Lastly, this is far from an attack on the Canadian Broadcasting Corporation. The salary disclosure requirements of this bill are to be applied in the entire federal public service. CBC is in no way being singled out. Transparency is not the enemy of a public institution, far from it. Transparency leads to trust. There is trust that there is proper stewardship over public resources. The people at CBC should want to disclose. They should want this legislation so that Canadians can once again have the trust that they are the proper stewards over public resources.

I encourage all members to support Bill C-461, and in an unamended form, when it goes to committee.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, since I have only six minutes to speak to Bill C-461, I would simply like to say that I am strongly opposed to it.

In my opinion, it is another ridiculous, ideology-driven bill, which the Conservatives are using to muzzle institutions that are not to their liking. Under the guise of increasing transparency at the CBC, the Conservatives are using this bill to weaken the public broadcaster.

The bill's sponsor, the member for Edmonton—St. Albert, already shared his true feelings during the last election when he said the following to a local chamber of commerce:

I don’t know that we need a national broadcaster in 2011. … We have to wean them off … of the taxpayer’s dollar....

In December 2011, he told The Globe and Mail that he and other Conservative members were urging cabinet ministers to make more aggressive cuts to the CBC. What the Conservatives are really trying to do with this bill is dismantle the crown corporation.

We need to understand that this underhanded attack on the public broadcaster is widely supported in Conservative circles and by this government. In June 2003, when the Broadcasting Act was undergoing a thorough review at the Standing Committee on Canadian Heritage, the Canadian Alliance—the precursor to the Conservative Party—clearly stated its policy on the public broadcaster in a dissenting report that said: “We would significantly reduce CBC operating subsidy by commercialization of CBC television.”

The Prime Minister himself has said on several occasions that he wanted the CBC to get to the point where it no longer needed parliamentary subsidies. In May 2004, for example, he made the following statement:

I’ve suggested that government subsidies in support of CBC’s services should be to those things that…do not have commercial alternatives.

As we can see, the Conservatives' aversion to the public broadcaster is in their DNA. The Conservatives think that the ideal public broadcaster is a dying, insignificant and insipid broadcaster. It is also important to note that the Conservatives started undermining the public broadcaster as soon as they had a majority government. In 2012, they announced $200 million in ideological cuts to CBC/Radio-Canada. These cuts had an impact on the quality and quantity of services, on both the information and the entertainment sides of things. Let me give you a few examples.

The mandate of RDI and Espace Musique was reduced in the regions. Regional programming was affected, especially in French-language minority communities. Regional stations' music libraries will be eliminated. Broadcasting by all general television stations will be centralized, and half the air time reserved for the regions on Espace Musique will be cut.

Of course, programming will get hit. On French television, dramatic series will have fewer episodes, there will be fewer major productions and management intends to reduce RDI's production costs. I should also mention that proposals for specialized sports stations and children's programming will be scrapped. There has also been a lot of disruption to CBC radio.

Canada's international influence also melted like snow in the hot sun when the government axed Radio Canada International. In all, 650 people will lose their jobs by 2015, including 243 employees of the French service. When the Conservatives brought down their budget last week, they took the opportunity to further reduce the CBC's budget by cutting an additional $42 million.

The NDP believes in a strong, independent public broadcaster funded in part through ad revenues and in part by parliamentary votes in recognition of the service it provides to Canadians in terms of sharing local information and promoting our cultural wealth.

The Conservatives' budget cuts are forcing the CBC to rely more and more on ad revenues and to operate like a commercial broadcaster. The government is asking the public broadcaster to compete with major conglomerates such as Bell Media, CTV and Quebecor, without ensuring that there is a level playing field.

I would like the sponsor of the bill to answer the following question: if his real objective is transparency, why should the CBC be the only one to have to disclose its production costs? Why not ask the same of private broadcasters, who also receive public funds?

I oppose this bill, which is a backdoor attack against the CBC, because Bill C-461 targets the capacity of the crown corporation to remain competitive and independent. What is more, this bill is unnecessary since the crown corporation has significantly improved its access to information practices since the 2006 bill on government accountability. Members will recall that it was through the collaboration of the NDP and the hon. member for Winnipeg Centre that the CBC was brought under the Access to Information Act. I want to reiterate my opposition to this bill and my support for the CBC and the work that it does.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Mr. Speaker, it is indeed a pleasure to rise and speak at second reading of Bill C-461, an act to amend the Access to Information Act and the Privacy Act (disclosure of information) or, as the bill's short title makes clear, the CBC and public service disclosure and transparency act.

I would like to respond to some of the criticism I have heard tonight. The bill would actually bring the CBC in line with other crown corporations. Exemptions that exist for the CBC that have been abused would be eliminated.

There are many reasons to support the bill. I would like to take a moment to highlight some of mine. As someone who has used Canada's access to information laws to review government spending, I am already familiar with the importance of such laws to get at information either that governments may report to the public out of context or, at worst, that they wish to hide.

These laws are important because they hold governments accountable. How exactly does this happen? When decisions are subject to review, individuals throughout the public service are much more likely to follow rules and reflect on how tax money is spent. When they do not, the results cannot be quietly locked away safe from public review. For this reason, sunshine in government is a useful disinfectant for unscrupulous behaviour.

Let us look at the bill's specific reforms. First and importantly, as the bill's name suggests, it would bring greater accountability to the CBC. I believe it is the duty of government to be transparent and open. Canadians need to know that when household income is taken away from them in taxes it is being put to good use. Yet a problem currently exists. There is a loophole in the Access to Information Act, which was created for the CBC, whereby this news, culture and entertainment company can refuse to release any documents it believes are inadmissible.

Aside from going through the courts, there is no adequate oversight review. This loophole has been exploited by the CBC to refuse replying to information requests. Specifically, the act currently states that:

This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

This means the CBC is not required to provide any transparency except for information about its general administration. However in turn, it is expected, actually required, to report on what is covered. Yet the CBC has erroneously applied its exemption broadly and at times refused to provide information that it is obliged to, in my opinion. It has used that clause to delay or deny the provision of information even to the Information Commissioner, whose job it is to determine whether or not Canadians have a right to access requested information.

In this case, the matter went to the court. Both the Federal Court and the Federal Court of Appeal agreed that CBC was wrong to withhold certain documents from the Information Commissioner. The courts also found that the wording of that section of the Access to Information Act is less clear than it could be and “a recipe for controversy”, which is exactly what it delivered.

The sponsor of this bill is responding to a flaw in the current law as identified by the courts. The Information Commissioner is correctly asking that greater onus be placed on the CBC to demonstrate that it could actually be harmed by releasing certain exempted documents, and the public interest should be weighed in each decision.

The NDP member for Halifax just stated that we are actually already on the same page as other countries, but that is not quite accurate. Australia, Ireland and the United Kingdom all allow independent bodies to review documents held by their public broadcasters. I believe it is time Canada did the same, because right now under the law, it is the CBC that acts as judge and jury in these cases. If people want to appeal, they have to go to the courts, which is expensive and time consuming. However, neither the commissioner nor any other taxpayer should be forced to go to the Federal Court to resolve disputes.

Bill C-461 would redefine the exemption clause for the CBC with what is called an injury test. This means that unless disclosing the information could reasonably be expected to prejudice CBC journalistic, creative or programing independence, the information could not be withheld. Also, in line with other areas of the federal government, the CBC would not decide what is covered and what is not.

Explicitly giving an officer of Parliament, in this case the Information Commissioner, the authority to adjudicate whether or not this injury test is met is wise public policy because it would ensure that an independent third party ruled on what could or could not be made available to the public. This would help avoid the possibility of lengthy litigation processes that could result in further information being effectively denied through delay.

In effect, what both the member for Moncton—Riverview—Dieppe and the member for Halifax are stating today is that they do not trust the Information Commissioner to resolve these disputes; yet the Information Commissioner looks at all sorts of confidential government documents and in those cases is trusted to decide what is to be released and what is not to be released.

I believe this clause would not expose media sources to prying eyes or impact the CBC's independence, and frankly, we do not want it to.

If anyone argues the CBC should be exempt, as I have heard tonight, I would ask why others should not be exempt. I ask that rhetorically, because I do not believe federal government agencies should be exempt from oversight. Supporters of the CBC, of which there are many, might believe the mother corporation is in a unique position compared to other crown corporations, but it is not. At the end of the day it spends public dollars, and Parliament must hold all such agencies, departments and crown corporations accountable without fear or favour.

Second, the bill would amend the Privacy Act to allow for the public disclosure of specific salaries and responsibilities of anybody who earns more than $188,600 from the federal government.

Nova Scotia and Ontario require the disclosure of the name, salary and job title of anybody making $100,000 or more from the respective provincial governments. These sunshine lists hold those governments accountable for the salaries given to the top bureaucrats, civil servants and anybody else who earns six figures or more per year from the government. Manitoba, incidentally, sets its transparency level at a mere $50,000.

My own province of New Brunswick has a disclosure limit at $60,000. What is more, employees receiving in excess of $10,000 in retirement are subject to public disclosure. These numbers are reported annually, and this has been a good thing for taxpayers and open government.

Right now the legislation of the Government of Canada only allows for the disclosure of a very broad, very vague and almost entirely unhelpful salary range.

As my hon. colleague, the member for Edmonton—St. Albert, found out, the salary range for the current CEO of CBC is somewhere between $358,400 and $422,000. However in addition, generous bonuses can be paid to the CBC president and other civil servants. At most, bonuses in the federal system can reach 39% of the basic salary, yet taxpayers have no idea if a bonus was paid or what amount was paid.

I will note that, again, when my hon. colleague from Moncton—Riverview—Dieppe set his threshold level on behalf of the government he could not even bring himself to tell us what that level would be, so let me tell the House. If we were to go with the top end, as the government is proposing, it would mean a disclosure level at about $444,000, which is a level that would effectively neuter this legislation.

All my colleagues in the House, as well as other places, are required to disclose their salaries. They are public knowledge, and rightfully so. I believe the amount in this legislation is set too high. Instead, it should start at the rate of pay for members of Parliament, which is currently $157,731, an amount incidentally that has MPs already in the top 2% of all Canadian income earners. This figure is well higher than the minimum limits we see in provinces with sunshine laws.

With the passage of the bill, Canadians would be able to shed new light into some of the currently dark corners in the civil service. This is not to suggest something untoward is happening in the corners that are exempt from public oversight, but the fact is that we do not know. We and all taxpayers have a right as citizens to ask and receive answers. Taxpayers are, after all, the ones footing the bills. I hope no person elected to this chamber will argue that some areas of government ought to be exempt from accountability.

That is why I will be supporting Bill C-461, and that is why I hope my hon. colleagues will do the same.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I have served with the member for Edmonton—St. Albert on various committees, including in the last Parliament when we served together on occasion on the justice committee. I respect his work because he speaks his mind and his opinions are based on his values. However, just because I respect his approach to Parliament, it does not mean that I always agree with him and this is a case where I do not agree with him and am opposed to this bill. In trying to figure out where I stood on this bill, I did a bit of an analysis, which I would like to share with everybody today.

The first step is to look at what the bill would do. I want to focus in on section 68.1 of the Access to Information Act. Section 68.1 reads:

This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

There is an exclusion here. Why the exclusion? These sections are drafted to ensure that a public broadcaster's administrative functions are not excluded from the reach of FOI, or freedom of information, and accountability. It is the program and content activities for the public broadcaster that need to be distinguished and excluded. It is an acknowledgement of the separation between media activities and other activities as a crown corporation. This bill proposes to amend the Access to Information Act to repeal that exclusion for CBC for information related to journalist, creative or programming activities and replaces it with an exception.

When considering a section like this, it is useful to compare ourselves to other jurisdictions to see what is happening in similar situations in other countries. The public policy goal of an exclusion like this one is to ensure public accountability, while protecting independence and integrity. Let us take a look at the other jurisdictions to see how they strike that balance.

We have heard that other countries have similar legislation, like Australia, and have had this legislation for years. In fact, it has been well over 20 years.

Since 2000, the Irish public broadcaster, RTÉ, has been subject to the Irish freedom of information act in relation to its administrative activities, but it is excluded in relation to a range of material, including information gathered or recorded for “journalistic or programme content purposes, whether or not a programme is produced on the basis of such information, or is broadcast”. RTÉ's exclusion also extends to other activities like the identification of sources of information, editorial decision making about program and schedule content and post-transmission internal review and analysis of any program or schedule of programs broadcast.

Since the U.K.'s freedom of information act was enacted in 2000, the British Broadcasting Corporation, the BBC, has been subject to the act except in respect of information held for purposes of “journalism, art or literature”.

The first step of the analysis is to explain the purpose of this exclusion and it seems we are on the same page as other countries with public broadcasters.

Let us look at the change and figure out what exactly this change would do. I will read clause 18.2 of Bill C-461, which states:

The head of the Canadian Broadcasting Corporation may refuse to disclose any record requested under this Act if the disclosure could reasonably be expected to prejudice the Corporation’s journalistic, creative or programming independence.

It is important to note that when the Federal Court of Appeal, when it has been asked to review whether documents should be released, it has settled matters such that both the Information Commissioner and the CBC have supported. At best, this bill is gratuitous. The access to information system was already working and the CBC was often proactive in its disclosure of information when it came to things like expenses. At worst, this bill is an attack on the CBC's viability as a journalistic source that puts its investigations at risk by jeopardizing its ability to protect its sources.

The attempt to reverse this burden of proof, to force the CBC to prove that a request is “injurious”, is part of an ideological attack on public broadcasting in Canada. Further, the protection that will remain is defined narrowly, too narrowly to adequately protect journalistic work. These changes put an unjustified burden on the CBC and will make the CBC vulnerable to unfair and compromising requests, not to mention expensive legal battles.

What is clear is that the integrity of a journalistic entity that is free of corporate influence is in jeopardy.

Canadian Journalists for Free Expression has weighed in with a statement. If people are listening at home, they can find that statement on the group's website. In its statement, it writes that Bill C-461 would:

...significantly weaken the CBC’s ability to deliver a key component of its mandate: carrying out public service journalism and creating programming completely independent from the government. That mandate was given to the CBC by Parliament decades ago and remains in force. To carry it out, CBC journalists must be able to conduct research and prepare programs without pressure to disclose the results prematurely or surrender operational details. The corporation must be able to acquire broadcasting rights and creative content without being required to disclose negotiating positions or strategy. In this respect, arm’s-length public broadcasters differ from other government departments. That is why other parliamentary democracies protect these broadcasters with exclusions like the one current in section 68.1 of the ATIA. Canada should do no less.

The CJFE goes on to describe what effect this attack on public journalism would have on the quality and breadth of news Canadians would be able to expect from the CBC. They say:

...what whistleblower would approach a CBC reporter? How could CBC journalists in good faith promise to protect their sources? How, both commercially and ethically, could the CBC sustain any investigative journalism if the process and the research could be revealed to CBC competitors or to the subjects of CBC investigations? In fact, a chill would fall upon CBC journalists and the broadcaster’s ability to produce journalism with integrity would be seriously jeopardized. A bill that ostensibly aims to increase accountability would destroy the public broadcaster’s ability to hold government and the powerful to account.

I have heard some of the debate in the House in relation to Bill C-461 over the past couple of months, and certain Conservative members have come forward to say that the bill does not single out the CBC. I beg to differ. The bill is called the CBC and public service disclosure and transparency act, so it is pretty clear that it is about the CBC. It applies to the CBC and no other organization. That is pretty settled.

I have also heard statements saying that the bill is not an attack on the CBC. The member who brought the private member's bill forward is on the record saying:

I don’t know that we need a national broadcaster in 2011.... We have to wean them off...of the taxpayer's dollar....

In my opinion, this has nothing to do with transparency and everything to do with attacking the CBC.

Journalistic freedom is the foundation of democracy. It is unconscionable that the Conservatives are attacking public investigation. The CBC has an important role to play in investigative journalism. My New Democrat colleagues and I believe in a strong and independent public broadcaster. It is essential that the CBC remain a trusted news source on which Canadians can rely.

Bill C-461 should be defeated.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to have this opportunity to speak for a few minutes on the subject of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information).

I begin by thanking the member for Edmonton—St. Albert for his efforts to bring forward this issue. Bill C-461 promotes greater transparency and accountability, not only in relation to CBC but also in relation to the public service as a whole.

Overall, the government agrees with what Bill C-461 is trying to accomplish. The public has a right to access information from the CBC as it receives funding from the government. The public has a right to find out the salaries of the very highest paid individuals in government institutions. These are important things the public needs to know.

That being said, we have looked at Bill C-461 and we believe it requires certain modifications. Therefore, the government will propose amendments. These amendments will not hinder or detract from the main goal that Bill C-461 tries to achieve.

Before I describe these amendments the government will propose, I will begin by spending a bit of time describing for the House what Bill C-461 seeks to achieve. I will first focus on the part of Bill C-461 that relates to the CBC.

Currently the Access to Information Act only allows a requester to access records that deal with the general administration of the CBC. Only requests that deal with such records will be considered and processed by the CBC. As a result, any record that contains information that relates to the journalistic, creative or programming activities of the CBC are excluded from coverage by the Access to Information Act. This means that if the CBC receives an access request that involves any records containing information that is journalistic, creative or programming activities, these records are not even processed as the access regime simply does not apply to them.

Generally speaking, broad exclusions are undesirable in an access to information regime from the perspective of openness and transparency. The current exclusion for the CBC is a problem because it excludes too much information. It is unclear and it also raises problems of interpretation and of application. In fact, it led the Standing Committee on Access to Information, Privacy and Ethics to undertake a study of the CBC's application of the exclusion. It also led to a court dispute between CBC and the Information Commissioner. I will come back to this later. Bill C-461 proposes to replace this problematic exclusion with an exemption, which will be more beneficial to the access regime.

When I say that the current exclusion covers too much, the point I am trying to make is that not all of the CBC's journalistic, creative or programming records are so sensitive that they deserve to be excluded from coverage by the Access to Information Act. However, I am certainly not suggesting that these CBC records should automatically be disclosed to a requester. On the contrary, Bill C-461 proposes that the CBC can protect these records with an exemption that can be used at its discretion.

The exemption would contain an injury test specific to CBC. That injury test would allow the head of the CBC to decide to protect the information from disclosure if it was determined that disclosure would be prejudicial to the CBC' s journalistic, creative or programming independence.

These activities are at the core of the CBC's mandate as a broadcaster and it is recognize that disclosure of information about such activities may hamper the CBC's ability to function in such a competitive environment. The requirements to demonstrate harm to a category of activities in order to protect information from disclosure is the type of exercise that many government institutions already perform on a large number of federal government records in the course of responding to access requests.

There is a secondary benefit to the changes proposed by Bill C-461 with regards to the CBC. It will allow for a very important review of the role by the Information Commissioner, an independent officer of Parliament with the responsibility of overseeing the application of the Access to Information Act. Review by the Information Commissioner of CBC's records was the subject of the dispute I mentioned earlier. The exemption for records of the CBC that Bill C-461 proposes will make it crystal clear that the Information Commissioner can carry out her crucial oversight role in relation to the CBC.

I will speak now about an exclusion for confidential journalistic sources of the CBC. While I have spoken now about the problems caused by an overly broad exclusion, there is no doubt that an exclusion offers the highest level of protection for information. There are some limited and specific categories of information that should be covered by a targeted, well-defined exclusion.

With respect to Bill C-461, it is the government's belief that information that would reveal the identity of confidential journalistic sources should continue to be excluded from the act.

When we previously spoke about Bill C-461, we noted that the ability to protect the identify of confidential journalistic sources was a pillar of journalism. Individuals who are confidential sources of information are understandably nervous about being identified. If a broadcaster cannot offer them complete guarantee of anonymity, they will go to another broadcaster or journalist.

As Bill C-461 is currently drafted, it would not allow the CBC to provide its confidential journalistic sources with an ironclad guarantee of continued anonymity. This is because the proposed new exemption in Bill C-461 contains an injury test that can result in their identity being revealed if the test is not met and will allow the Information Commissioner to review documents that identify them.

The position that we are taking with regard to the confidential journalistic sources is consistent with the 2011 Federal Court of Appeal decision on this matter. The court considered the CBC's exclusion and concluded that for journalistic sources, the exclusion was absolute and the Information Commissioner could not examine such information.

Bill C-461, with the amendment proposed by the government, would essentially reflect the outcome of the decision of the Federal Court of Appeal. I will stress that both the CBC and the Information Commissioner expressed satisfaction with the outcome of that decision.

I will speak now about disclosure of information on officers or employees of government institutions.

The next area where Bill C-461 would seek to increase openness and accountability is with regard to the expenditures of public money. Bill C-461 would increase openness and accountability by requiring more disclosure on expenditures in two areas: one would be the reimbursement for work-related expenses received by public servants; and the other would be the exact amount received by the highest paid individuals in government institutions.

Let me start with the issue of exact salaries.

In the public sector, job classifications are accompanied by a salary range within which someone is paid. Where they specifically fall within that range depends upon a number of factors, including time spent in the position and performance reviews.

Until now, the only information regarding salaries that could be made available to an access requester was the salary ranges of individuals enquired about. This salary range, along with other disclosable information, was enough to give a requester a good idea of how much an individual was remunerated by the government. We believe that being able to obtain salary ranges for the majority of public servants pursuant to an access to information request is appropriate.

In 2006 the coverage of the Access to Information Act and Privacy Act was expanded to a number of crown corporations. This change was brought forward with the Federal Accountability Act. Information on parent crown corporations and their wholly owned subsidiaries is now accessible under the Access to Information Act and Privacy Act. As a result, the Access to Information Act and Privacy Act now include a number of government institutions whose employees and officials are much higher paid than the vast majority of civil servants. We support the idea put forward in Bill C-461, that the highest paid individuals in the public sphere should have their exact salaries disclosed.

However, we propose an amendment to permit the disclosure of the exact income of those individuals that exceeds the highest level of the deputy minister level. This is a more practical level to administer than pledging the threshold in the middle of the deputy minister classification as is currently in Bill C-461. It also better reflects the intention of disclosing the income of the very highest paid individuals.

This is a sensible amendment as it crystallizes the fundamental idea that if an individual, in the course of their employment, incurs an expense and is compensated for that expense by the government, then that information should no longer be treated as personal information. The more noted expenses, when they are paid back to the employee, will be known by all. It is important to be transparent because we want the government to be money wise and only spend money where it is necessary.

Both the provisions of Bill C-461 requesting exact salaries and reimbursement of expenses go toward furthering transparency in the mechanisms of government. Individuals and institutions that are trusted with the public purse should be able to demonstrate where and how money is being spent.

The government supports Bill C-461, with the amendments I have described, because it would go toward achieving the transparency and accountability sought.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I appreciate the opportunity to address the House on Bill C-461, which is an interesting piece of legislation. At the end of the day, one may question whether the bill will be sent to committee, but it brings up what I believe are very interesting issues that are important to discuss.

I was listening to the previous member speak to the issue of CBC, its legacy and how Canadians perceive it today. I truly believe that Canadians from coast to coast to coast tune in to CBC radio and television networks on an ongoing basis. The services that CBC provides to Canadians are second to none in terms of they type of programming and ensuring that there is a high level of Canadian content, which is very important for the industry here in Canada and taking the talent we have to the next level.

Not only does CBC have direct benefits for the viewing and listening audience here in Canada, but we often find people abroad and around the world tuning into CBC Radio. Now because of Internet technology, we find that more and more people are tuning into the websites of CBC.

Historically, there has been a high level of respect for the integrity of news and other types of programming, particularly documentaries, that CBC has aired over the years. Members will find that Canadians trust and want to see that continue because it is very important in terms of our own heritage as a country. We need to be able to feel comfortable in knowing that we have an industry that will continue to be there in a very healthy fashion.

Let there be no doubt, CBC does afford the opportunity for Canadians to have more than one radio or TV broadcasting program. It provides competition to the other industry stakeholders. It is not like we have 20 or 30 different broadcasting networks. Canada is not in a position to have those kinds of numbers. We have two or three private companies that have invested hundreds of millions of dollars, such as CTV, Global and Sun Media, which are healthy competition for the CBC.

I think we have to be very careful that we do not buy into what I believe, and many Canadians believe, is a hidden agenda from the Conservative right. There are many within the former Reform Party, now Conservative Party, who believe that Canada would be better off without the CBC and that there is no need for it. Therefore, generally speaking, people need to be aware that there are those, even within the House, who would like to see the demise of CBC TV and radio.

I am not one of those people. I believe in the CBC and the services that it provides to Canadians. Members will find that the Liberal Party of Canada believes in the valuable contributions of the CBC, whether from its broadcast news, other types of broadcast programming or its radio division and the services it provides to not only Canadians here in Canada but abroad as well. At the end of the day, the Liberal Party will stand up for the CBC and will fight to ensure that it is going to be there for future generations.

That said, the Liberal Party also believes in accountability and transparency. It is interesting that the bill attempts to deal with deputy minister level one salaries and higher. That is an important aspect of the bill.

Transparency and accountability are important. We know that the government, probably more than any other government that predates it, is somewhat reluctant to provide what we believe is important information, which Canadians should have the right to know. There is no hidden agenda there. We do believe there needs to be more transparency.

It is interesting that the bill has come before us at a time when we are debating the budget. For members who were here listening to the leader of the Liberal Party talk about transparency and the budget lines in the tables, there was a question posed about those line-by-line comparisons that used to be there.

In the name of accountability and transparency, we would argue that the government has done a disservice in terms of providing that transparency and accountability. That is why we find it interesting that we now have a private member's bill asking for more transparency and accountability from within the very Conservative cabinet.

I suspect that if the bill does happen to pass out of the House and is sent to committee, one of the areas of discussion would be in regard to cabinet and to what degree they are prepared to ensure there is more accountability and transparency in terms of freedom of information access requests. The government goes out of its way to avoid that sort of accountability, yet many of its members are calling for more accountability with the CBC. I will have to be excused for not necessarily believing that the government is being genuine on the issue.

At the end of the day, Canadians as a whole cannot be blamed for being suspicious of anything the Conservatives want to do in regard to the CBC. This is because a very high percentage of Canadians believe in the value of the CBC. They see what the Conservative record has been. They see the petitions that have been introduced in the past number of months in regard to targeting the CBC, and some of the comments that have been put on the record in regard to the CBC. There seems to be this opinion that there is this pent-up frustration from many of the Conservative, or maybe the past Reformers within the party.

There is a potential hidden agenda there that is not healthy for our country, if we believe in the preservation of heritage and the promotion of the role that CBC has played both in the past, in the present and hopefully well into the future. This is why we approach it with some skepticism.

On the other hand, we do believe in the merits of ensuring that there is more transparency and accountability with respect to the ministers and the government as a whole. It would be nice to see the government approach things in a more accountable and transparent way and be clear in terms of the future of the CBC from the government perspective.

If the government was more transparent in regard to the CBC and if it had a long-term vision that it was prepared to share with Canadians, maybe then there would not be as much skepticism.

I suspect the freedom of information request that would be filed if this legislation were to pass would come from CBC's competition and many of the Conservative government members. This is really where the drive for this additional information is coming from. That is why I would caution members on what we will be voting on and to be very suspicious and watchful if it ends up going to committee.

[Jamie Nicholls, NDP, Vaudreuil—Soulanges, QC]

Mr. Speaker, I rise in the House today to express my opposition to Bill C-461. People who defend this bill will say that its purpose is to improve the CBC's transparency. My New Democrat colleagues and I want to show that it is actually a sleight of hand designed solely to target our national broadcasting service while weakening it in the face of its private competitors.

It is important to shed light on the Conservatives' real intentions. With this bill, the Conservatives are trying to discredit the CBC through insinuations that are not only unfounded, but also wrong. We wonder why are they doing this. Is it to punish our national broadcaster, whose only crime was apparently being too dedicated in its duty to inform Canadians, especially when it comes to the actions of the Conservative government?

With this bill, the Conservatives want to imply that the CBC operates opaquely and apparently has something to hide from Canadians. For example, the government wants us to believe that the CBC's most senior executives are hiding their salaries from Canadians. That is absolutely not the case. Every Canadian can go to the CBC website and find the executive pay scale. All you have to do is click on the “Reporting to Canadians” tab.

The hon. member for Edmonton—St. Albert said that this information is worthless since we are talking about a pay scale and not a specific salary. Since exact salaries constitute private information, I would like to remind hon. members that no Canadian broadcaster is required to provide any information about its executives' salaries. The CBC therefore demonstrated great transparency by providing its executive pay scale.

Next, I would like to draw the hon. member for Edmonton—St. Albert's attention to the fact that the pay-scale method is necessary in a society that recruits its executives from a competitive market. The Conservatives always like to claim that they are the only ones who understand how the market works. They should therefore understand this basic principle.

What is more, salary amounts are decided by the board of the CBC, whose members are appointed by the Conservative government itself. In that sense, I really do not see how the Conservatives can continue to insinuate that there is any sort of problem with the income of CBC executives.

The Conservatives are also speaking out against a system of exemptions for the CBC. They are suggesting that there is no justification for such a system. Must I remind the government that there is no other public broadcaster in Canada? Is it not then natural for the legislation governing a public broadcaster to make specific reference to the CBC? Clearly, there is a discretionary exemption, as the Conservatives call it, since the CBC is the only company involved.

I want to remind the Conservatives that they are in no position to lecture the CBC on transparency. For example, every time the CBC refused to disclose documents in order to preserve journalistic confidentiality, the corporation sent the documents to the Information Commissioner for her to verify their protected nature.

Finally, it is my pleasure to remind the House that the Information Commissioner herself gave an A, the highest grade in access to information, to the CBC. The same cannot be said of the Conservative government, which has been criticized more than once by the same commissioner for its overly high rate of refusal, for its unreasonable response times, and for its excessive tendency to censor information.

Therefore, since we already know the salary grid of the CBC's managers and since it has shown exemplary transparency, what is the real aim of Bill C-461 and what will its consequences be if adopted?

First, it seems clear that the purpose of this bill is to attack our national broadcaster.

Ever since the last election, the hon. member for Edmonton—St. Albert has been on a crusade against the CBC. He has even gone so far as to say that Canadians do not need a national broadcaster. Fortunately, that is not his party's unanimous position, and the members of the Conservative caucus know that any attempt to suppress the CBC will fail. They know that Canadians treasure the continued presence of an independent information system. They know that Canadians love the CBC.

Noting the opposition to his bill, the same member has tried to attack the CBC's financing. First he suggested removing public subsidies. Realizing that his position was marginal, even within his own caucus, he has now resigned himself to trying to discredit an institution that is considered a model of transparency.

In fact, one of the primary goals of this bill is not to clarify the law, but to set off a spurious debate that will give him an opportunity to suggest that there is something fishy about the CBC's operations. And yet, the truth is that the CBC is already subject to many more transparency rules than its competitors.

What is this if not the Conservatives' mistrust of the CBC? It is no secret that the government sees the CBC as an adversary.

Why is the CBC seen as a threat? It is seen as a threat because it is still at arm's length from political power and the Conservatives have a hard time with that.

This is their logic: if the general public will not allow them to directly hurt the CBC, then they will interfere in how it does business and make it harder for the CBC to be competitive.

That is exactly what will happen when this bill is passed.

As if draconian budget cuts were not enough, the Conservatives now want to add as much of an administrative burden as possible to the disclosure of information.

With the passage of Bill C-461, requests for access to information will increase. These requests are not from Canadians wanting to know more about public spending. They come almost exclusively from certain members of the Conservative caucus and private competitors, their cronies.

Out of all the complaints regarding the CBC's performance in terms of access to information, 80% come from Sun News Network and its owner, Quebecor.

As a result, Bill C-461 seeks only to put the CBC at a disadvantage with respect to its competitors who are under no obligation to disclose information, even though they receive government subsidies.

In short, with this bill, the Conservatives are killing two birds with one stone. They are unfairly discrediting a corporation that continues to be exemplary despite budget cuts while threatening its independence and putting it at a disadvantage with competitors that they see as less of a threat.

We will be voting against this bill. It is nothing more than an ideological attack, another ideological attack, against the CBC, Canada's only public broadcaster.

The Conservatives should be proud of this institution instead of trying to destroy it at all costs.

The House resumed from February 12 consideration of the motion that Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), be read the second time and referred to a committee.