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.

The House proceeded to the consideration of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), as reported (with amendments) from the committee.

Speaker's Ruling

[The Acting Speaker, Bruce Stanton]

There are eight motions in amendment standing on the notice paper for the report stage of Bill C-461. Motions Nos. 1 to 8 will be grouped for debate and voted upon according to the voting pattern available at the table.

Motions in amendment

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

, seconded by the member for Winnipeg North, moved:

Motion No. 1

That Bill C-461 be amended by replacing the long title on page 1 with the following:

“An Act to amend the Privacy Act (disclosure of information)”

Motion No. 2

That Bill C-461, in the short title, be amended by replacing line 4 on page 1 with the following:

“1. This Act may be cited as the”

Motion No. 3

That Bill C-461 be amended by deleting clause 2.

Motion No. 4

That Bill C-461 be amended by deleting Clause 3.

Motion No. 5

That Bill C-461, in Clause 4, be amended by replacing lines 4 to 20 on page 2 with the following:

“(iii) the total annual monetary income of the individual, including any performance bonus, as well as the job classification and responsibilities of the position held by the individual, and any additional responsibilities given to the individual, if that income is equal to or greater than the sessional allowance—within the meaning of the Parliament of Canada Act—payable to a member of Parliament,

(iii.1) the salary range of the position held by the individual, as well as the classification and responsibilities of that position, if the individual's total annual monetary income, including any performance bonus, is less than the sessional allowance—within the meaning of the Parliament of Canada Act—payable to a member of Parliament,

(iii.2) the expenses incurred by the individual in the course of employment for which the individual has been reimbursed by the government institution,”

Motion No. 6

That Bill C-461 be amended by deleting clause 5.

Motion No. 7

That Bill C-461 be amended by deleting clause 6.

Motion No. 8

That Bill C-461 be amended by deleting clause 7.

He said: Mr. Speaker, it is a pleasure for me to speak to the amendments that you have just deemed to be admissible with respect to the report stage of Bill C-461 dealing with public sector transparency.

The bill, in its original form, is intended to do two fairly modest things. It attempted to remedy a well-documented and often litigated flaw in the Access to Information Act regarding the public broadcaster. Section 68.1 has been the matter of no less than 14 separate pieces of litigation between the information officer and the Canadian Broadcasting Corporation.

Both the Federal Court and the Federal Court of Appeal found that section 68.1 of the Access to Information Act, brought in by the Conservative government in 2006, is flawed in its drafting because it creates an exclusion subject to an exception. Section 68.1, and I am paraphrasing, says that the freedom of information act does not apply to the Canadian Broadcasting Corporation in terms of its documents and information that relate to its journalistic, creative or programming activities, other than information that relates to its general administration.

We can see the problem. It creates an exclusion where the act does not apply except under certain circumstances, in other words, matters regarding general administration.

In my view, and in fairly well-documented examples, the Canadian Broadcasting Corporation was able to use section 68.1 to deny the disclosure of documents that were under access request. The fact that the act did not apply indicated there was no power of review from the Information Commissioner. The Information Commissioner gets her powers of review from the act, so if the act does not apply there is no power of review.

This bill, in its original form, attempted to remedy this. It attempted to remedy what two federal courts indicated was not a model of clarity and was very awkward in its drafting.

The Standing Committee on Access to Information, Privacy and Ethics did a complete study on section 68.1 because there was so much controversy and misunderstanding. There were also 14 pieces of litigation between the information commission and the CBC.

The committee heard testimony. The Information Commissioner, Ms. Legault, testified in front of the standing committee on access. She recommended that section 68.1 be repealed and that it be replaced with an injury-based exemption, not an exclusion. It would be discretionary, so that if the test was made that the CBC would somehow be injured in terms of its independence, she would recommend against disclosure. However, if there was no prejudice or injury, she would recommend that the documents be disclosed.

It all seemed perfectly reasonable at the time, and that recommendation was incorporated in the original version of Bill C-461.

We heard evidence at the committee, and we had a number of hearings. I am not a member of the committee, but I sat through them as an interested member and as the sponsor of the bill. We heard cogent evidence that the independence test was too narrow. It created a level of discomfort within both the broadcast industry and the public broadcaster that the independence test was too narrow and it might be expanded to include something similar, to protect not only the independence but the freedom of expression of the corporation.

I conceded at the last of my three witness appearances before the committee that it would be helpful. Wording to protect not only the independence of the corporation but also its freedom of expression would be helpful, and it would give a greater level of comfort to both the industry and the Canadian Broadcasting Corporation. However, the committee, or at least the majority of the committee, was disinclined to accept that type of recommendation, so it was not passed.

The committee did pass a most unhelpful amendment regarding journalistic source protection. The House will recall that the problem with section 68.1, as it still is in the act and in law today, is the exclusion at the beginning with the words “This Act does not apply..”.

What did the government do to amend it at committee? It granted another exclusion. It provided an absolute exclusion for journalistic source privilege. It recommended the wording “This Act does not apply..”, which means that the Information Commissioner has no powers of review. Therefore, decisions of the Canadian Broadcasting Corporation with respect to journalistic source privilege are absolute and not subject to review by the Information Commissioner.

The inevitable result of that untenable situation is litigation. The Information Commissioner said as much when she appeared before committee. If her powers of review are compromised, she would have to go to court to get clarification of those powers because section 36 of the act gives her unfettered power to review documents under the control of government institutions.

The government, in its so-called wisdom, proposed the exact same problem that we just set out to remedy, which was that we were replacing the exclusion in section 68.1 with a discretionary exemption. Then government members went ahead in their amendments at committee to provide an exclusion with respect to journalistic source privilege.

I believe, and I say this with some regret, that the bill as amended by the access committee is actually worse than the status quo, the existing provisions regarding the Access to Information Act.

My intent was to provide clarity and certainty, and to have less litigation rather than more litigation. The government refused to entertain amendments regarding extending the discretionary exemption to include freedom of expression, in addition to its insistence that an absolute exclusion be given with respect to journalistic source privilege. I think that makes this a bad piece of legislation with respect to the CBC access.

In the motions that have been tabled, I am proposing the deletion of any reference to access to information regarding the Canadian Broadcasting Corporation, including the name of the bill. Motions Nos. 1, 2, 3, 4, 6, 7 and 8 deal with the deletion of sections regarding the Canadian Broadcasting Corporation's obligations under the Access to Information Act.

I still believe that section 68.1 needs to be fixed because it is awkwardly drafted. The courts have called it “not a model of clarity”. When there is an exclusion and then the exclusion is limited with an exception, we would have nothing but misunderstanding and litigation. It has to be fixed, but the bill in its current form does not fix it. In fact, in my view it makes it worse.

With respect to journalistic source privilege, I absolutely understand the importance of allowing journalists to protect their confidential sources. The Information Commissioner has had 1,200 cases before her, and not one has ever dealt with journalistic source privilege. As well, the name of an informant is confidential information under the Privacy Act and could not be disclosed. The CBC amendments at committee were most unhelpful.

With my remaining time, I want to deal with what I think is the most contentious issue, and that is with respect to salary disclosure. The bill attempts to allow an amendment to the Privacy Act to allow specific salary and job description disclosure for a civil servant over an appropriate range. The range in the unamended act was for the lowest level of DM1, or $188,000. However, the committee in its wisdom, and I say that with more sarcasm than I have ever used in my life, decided to raise the disclosure bar to $444,000 to ensure it could not apply to any DM, including a DM4, or anybody below him or her.

I am not sure how the government reconciles that with Treasury Board proactive disclosure. If an individual has a contract with the Government of Canada for as little as $10,000, their name, their contract and the value of their contract is on a Treasury Board website. However, if the individual is a deputy minister making $444,000, apparently the privacy laws of Canada are made to protect them.

The nub of this issue, in my view, is the performance bonus. The Parliamentary Secretary to the Minister of Justice will get up and talk about already disclosing ranges of salary. That is true. However, a DM4 is the highest level. The range is $272,000 to $319,000, and that is a pretty big range. That is almost $50,000.

However, that does not end it. A deputy minister at that level is entitled to up to a 39% discretionary performance bonus, or $123,000. Nothing in our current privacy provisions or access to information allows any interested Canadian to find out anything about a performance bonus, and that to me is deficient.

This bill attempts to undo the damage done by the access committee on June 5 of this year, which incidentally was the same day I left the Conservative caucus, and to promote transparency and disclosure, not opaqueness and secrecy. Given all the allegations of secrecy and opaqueness in this town, I would think that the government would grab my amendments and support transparency and salvage its reputation.

[Dan Albas, Conservative, Parliamentary Secretary to the President of the Treasury Board]

Mr. Speaker, I am pleased to have this opportunity to share the government's position on Bill C-461.

Bill C-461 was introduced in the House on November 5, 2012 by the member for Edmonton—St. Albert. As we now know, this bill has generated a fair bit of discussion. I believe that is healthy in any democratic society.

Bill C-461 has been subject to amendments that have also generated healthy democratic discussion.

It is important to recognize that bills are sent to the committee stage review as part of our democratic process. Committee review allows for input from stakeholders, expert witnesses, and those who may be impacted by any proposed piece of legislation. Let us never forget that legislation can affect the lives of Canadians. It is why we, as parliamentarians, must listen to all sides and strive to achieve a balance.

Our government is supportive of the principles raised by the member for Edmonton—St. Albert. The amendments to Bill C-461 provide a better balance in recognizing the obligation of the federal government as an employer.

Our government supports this bill, as amended. What exactly has been amended? In my view, we should not overlook that Bill C-461 proposes amendments to the Privacy Act. These amendments also coincide with this government's continuing goal of increasing openness andtransparency.

Currently, much of public servants' expenses or salaries are protected under the Privacy Act. The Privacy Act is an important piece of legislation that protects the personal information of all individuals, including federal employees. However, the Privacy Act also recognizes the fact that federal employees work in the public domain. Increasing accountability and transparency requires that more personal information be made available to the public when that information is about positions or their functions within a government institution. The Privacy Act provides that this type of personal information should not be protected when an access to information request is made. That type of information should be disclosed.

What Bill C-461 proposes to do is specify that all expenses incurred by federal officers or employees of a government institution in the course of their work and for which they are reimbursed are not protected as personal information under the Privacy Act. If there was any ambiguity before, it would now be clear that this information could and should be disclosed to a requester.

Under Bill C-461, if individuals, in the course of their employment, incurred an expense and were compensated for that expense by the government, that information, the amount of compensation, could be disclosed.

Governments must spend public money wisely and only where necessary. A person cannot expect that the reimbursement of a work-related expense by a government institution will be kept confidential. It is in the public interest that the law be crystal clear on this point. I believe that this is an important aspect of public accountability. This is a small but reasonable addition that will make things clear for everyone.

Another aspect of Bill C-461 relating to transparency and public expenditures is the disclosure of the salaries of certain officers of government institutions. Currently, the Privacy Act authorizes government institutions to disclose the salary range, the classification, and the responsibilities of the position held by all officers and employees. For all public servants, this information is not treated as personal information. Therefore, this information can be disclosed under an access request. We believe that for the majority of public servants, this is sufficient and reasonable.

Where I believe we need to go further is with respect to the highest paid individuals in government institutions. Many provinces disclose, often proactively, the exact salaries of its highest earners. These are called sunshine lists. Publicly traded corporations routinely release the amount of compensation for their top officers. The idea behind this is that stakeholders in the company deserve to know the exact amount the highest compensated individuals are taking home.

When it comes to government, all taxpayers are interested stakeholders, and they deserve to have this information. In these cases, it is not sufficient to know the salary ranges and job classifications of some of the highest earners in government. These people receive bonuses and other discretionary benefits from government institutions. Often what these individuals will receive at the end of the year from an institution is substantially higher than what is publicly announced for their position. That is why we believe that government institutions should be authorized to disclose the exact salary paid to the highest earners. This would include all the bonuses and benefits given to the individual.

We strongly believe, however, that this level of intrusion on an individual's privacy should be reserved for the highest paid individuals only. This is what we have done in Bill C-461.

In conclusion, I want to say that this bill enhances transparency in the operations of government while still maintaining a critical balance that is respectful of personal privacy.

Employees and institutions are entrusted with the financial administration of the public purse and should be able to demonstrate where and how that money is being spent. Individuals should be able to request records and review expenditures by public servants, and this should obviously include the CBC. It will improve the overall confidence and trust in our institutions.

I would urge this House to adopt Bill C-461 as it is presented today. The improvements this bill proposes to the Access to Information Act and the Privacy Act are sensible and promote transparency, openness, and accountability in key ways across government.

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

Mr. Speaker, I really appreciated the idealistic tone of the speech by my colleague opposite. It is important for those watching us today to truly understand what has happened.

A Conservative member introduced a bill that will allow the public to find out exactly how much money all federal employees making more than $188,600 are paid. He believes that this could lead to greater transparency in the public service and government agencies. We might think that he would have the support of his party, which was elected on the promise of transparency. Despite this reassuring tone, that is not at all the case.

On the contrary, his party let the member go ahead, the bill proceeded and, when the time came, the order was given to simply torpedo the bill, just like in a game of Battleship. When the bill was studied by the Standing Committee on Access to Information, Privacy and Ethics, all the Conservative committee members calmly raised their hands, without a word of explanation, and gutted the bill. They changed the wording so that only 1% of the public service—those earning more than $444,661 a year—would have to disclose their earnings. That is an absolute farce.

My colleague, the member for Rosemont—La Petite-Patrie, who I imagine was quite baffled, suggested that we rename the bill to better reflect its content. He suggested that it be named “An Act respecting the transparency of public servants earning more than $444,000 a year, with the exception of PMO employees”. I appreciate my colleague's rigour and concern for accuracy. We must call a spade a spade.

The last few months have been very difficult for the government. There have been major missteps and blunders, which generally indicate the end of a party's reign. The evolution of the bill is itself one of the Conservatives' major blunders.

Everything that elected Conservatives say they stand for, all the principles that they claimed as their own when campaigning and wanted to defend by putting their name on the ballot and asking for their neighbour's support, the very reasons they came to Ottawa for the first time as parliamentarians and proudly took their seats, all these principles are today back on the table. They are being called into question; they have been violated. It is shameful.

I am not questioning the good faith of most of my colleagues opposite. On the contrary, I put myself in their shoes, and I wonder how they might explain what happened here to their constituents or their base. On what basis can they justify and accept the government's actions in this case? There is some cause to wonder. There are some grounds for serious doubts, right?

No, that does not seem to be the case, since the Conservative members knew that one of their own wanted to introduce a bill on the disclosure of salaries of public servants and federal agencies. This is something that many of them would have probably supported, but they knew that there was an order from above, probably from the famous little boys in short pants running around in the Prime Minister's Office. We now know that they kept a close watch on everything that was going on in Ottawa to neutralize the provisions of the bill that amended the Privacy Act in order to allow for the disclosure of salaries.

This was to be a quick and dirty job, done discreetly and swiftly. Furthermore, the member who had the thankless task of proposing amendments to gut the bill, the member for Mississauga—Streetsville, whom I have to name here, did not even bother to explain himself or defend his position. He had to know that he was doing something that did not smell quite right. He clearly did not try to draw attention to his actions.

Moreover, all the Conservative members here fell in line and voted for the amendment. That said, all this was done in silence. No member bothered to speak. There are some things you just cannot talk about.

The government loudly and constantly claims to speak on behalf of taxpayers. However, the Canadian Taxpayers Federation expressed its disgust—yes, its disgust—at the government's actions on this front.

The federation's representative, Gregory Thomas, had this to say after a close look at Bill C-461: “Not one witness, nor one committee member even spoke to why increasing the threshold was a good idea. Probably because they couldn’t think of even one good reason.”

According to him, “Canadians expect openness from the Harper government, not cover-ups and stonewalling.”

He went on to say, “This is another example where the government is not walking its own talk when it comes to accountability.”

In closing, he stated that, “In light of recent scandals, we need more information and accountability from this government, not less.”

He was right when he said that not one witness supported the idea of increasing the threshold for disclosure. On the contrary, those very witnesses, including the Office of the Information—

[Jeff Watson, Conservative, Essex, ON]

Mr. Speaker, I rise on a point of order. As a reminder, proper names should not be used in the chamber, but instead should be referred to by either their position title or their riding.

[The Acting Speaker, Bruce Stanton]

I thank the parliamentary secretary for his intervention on that. Members know that is a practice that is prohibited in the House by the Standing Orders. I thank him for catching it. I happened to be engaged in a different discussion here momentarily and I will put my attention to the hon. member for Longueuil—Pierre-Boucher.

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

Thank you, Mr. Speaker, but we are all mistaken because I am quoting Gregory Thomas from the Canadian Taxpayers Federation.

[The Acting Speaker, Bruce Stanton]

In fact, the standing order concerning the use of other names applies even if the name is found in a quotation. The same rule applies in this case.

[An. hon. member]

I do not understand.

[The Acting Speaker, Bruce Stanton]

If the name is used in a quotation, the same rule applies. The member should replace it with the member's title or riding.

The hon. member for Longueuil—Pierre-Boucher.

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

This is complete chaos; I did not name anyone. I quoted a person, whom I named. In any case, let us not waste time on this. Let us not make mountains out of molehills. We should be discussing more important things.

That individual was quite right in saying that no witnesses supported the proposal to increase the disclosure level.

On the contrary, those same witnesses, including the Information Commissioner, the Privacy Commissioner and the president of the Fédération professionnelle des journalistes du Québec, all had plenty to say about the bill and the amendments put forward by the Conservatives. However, none of what was said by the experts was retained by the Conservative majority in the committee.

For example, the Information Commissioner proposed replacing the term “independence” with “activity” after many witnesses insisted that the bill was a threat to journalism and investigative journalism in particular. Obviously, the Conservatives rejected that recommendation.

Then the commissioner issued a very clear plea to the committee, asking it not to add a new exclusion to the assortment of exceptions and exclusions already set out in the bill, because that exclusion would require clarification from the courts. The Conservatives added it anyway.

In this case as well, the Conservatives flatly refused the Information Commissioner and added a new exclusion to the bill for journalistic sources, an exclusion that we know will be completely ineffective, useless and very costly and will not really do anything to protect journalistic sources. On the contrary, it exposes sources and undermines many sources' confidence in CBC journalists.

The stated purpose of the bill was to clarify section 68.1 of the Access to Information Act, which has been the subject of litigation. The bill's sponsor reminded us that that section was not a model of clarity. It is important to remember that that section has already been clarified, not by Parliament, but by the courts. This matter was resolved two years ago, to the satisfaction of all parties involved.

The bill, as it is being presented today, completely reopens this closed file and makes a mockery of the Federal Court and Federal Court of Appeal decisions. This would be like taking a circular saw to a wound that is just starting to heal. What this means is that a bill that is supposed to be in the taxpayers' interest will in fact cost hundreds of thousands of dollars in new court cases. New definitions will be needed.

The Information Commissioner very clearly said not to add a new exclusion in the bill. She said:

...please consider this: you are going to create another difficult situation if we create another exclusion to an exemption. How that's going to work, I really don't know.

These comments did not come from just anyone. She knows that such a bill will lead to even more litigation and court challenges.

Today, this bill's sponsor recommended that we remove these clauses from the bill, and I commend him for stepping up. We now know that these provisions will cost taxpayers dearly. We know that this bill is very far from being a model of clarity and that it would replace a solution with a problem.

It is not easy for the Conservatives to justify this bill to ensure transparency, when the bill itself is not transparent at all and it will cost taxpayers a fortune.

Although the bill's short title is “CBC and Public Service Disclosure and Transparency Act”, its salary disclosure provisions do not even apply to the president of the CBC, whose salary falls below the disclosure threshold, which the Conservatives just raised by $250,000.

Behind the doors of a committee room in Ottawa, the Conservatives quietly increased the minimum salary disclosure threshold to $444,661. This is 11 times the salary of an average worker in Canada.

I wonder how the Conservatives will justify such a move. How will they explain such a decision to their constituents? What will they tell their party faithful, who have been fighting for years to have the government monitor the public purse and spend carefully, and to make it more transparent and accountable?

Those in this room who support greater transparency, accountability and respect for the public purse, and those who care about doing a good job on this bill as legislators, now know what they have to do.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is a pleasure to rise today to speak to Bill C-461.

First I would like to compliment the member for Edmonton—St. Albert. He has obviously made an exceptional effort to get a better appreciation and understanding of getting a bill passed through the House, which can be a challenge at the best of times, as we all know. He has identified an issue that we collectively in the House hear a lot about. In the last number of months we have heard a lot about transparency and accountability, whether in this House or the Senate chambers.

In his own way the member has identified another way that we can ensure more transparency and accountability. I very much respect that.

It is most interesting to see the original wording of the bill and where it is today, where I had the privilege to second some amendments.

I am hopeful that members will see this situation for what it is. This private member has taken an exceptional amount of time to get a good understanding of an issue and then put it forward to the House of Commons. I have been a parliamentarian for over 20 years, and one of the things that I really respect about the House is the fact that we have private members' bills. We have hundreds of them.

Sadly, less than half will actually be dealt with. I think I am right in saying they number 200 or something of this nature, and if we sit enough days, my bill might actually come before the House, but most bills will never be voted upon.

It is a privilege to be in the House. It is a great opportunity if one gets the opportunity to bring an idea before the House. I like to think that at the very least we should preserve that aspect about private members' hour. It should not be based on party policy forcing all government members to vote a certain way or all Liberal members to vote a certain way. The same applies to the New Democratic Party. This should not happen during private members' hour when we are dealing with an issue of this nature. My understanding is it is supposed to be a free vote.

In looking at the legislation and the amendments that have been brought forward, and based on what I witnessed in the second reading vote and on my understanding of the issue of transparency and accountability, I believe the bill as amended should be able to pass on merit alone.

In the procedure and House affairs committee we were talking about proactive disclosure and how we in the Liberal Party have proactive disclosure. People can click on to the net and see the cost when I have flown to Winnipeg and come back. My hospitality costs are there . It is all there to be seen. The Conservatives are not exactly sure what it is yet, but they are saying “us too”. The NDP is saying it will at some point.

Why do I say that? It is because the member for Edmonton—St. Albert has found something all of us should be supporting. There were some reservations when it came in for second reading, if memory serves me correctly. I would have voted against it going into committee. The reason for that was the CBC aspect, but the CBC is no longer a factor in it now.

One of the nice things about committee is that members are afforded the opportunity to make some changes. We should value that aspect. It is the same thing with report stage. That is an important aspect of private members' bills.

One thing we have to be very careful of—

[Costas Menegakis, Conservative, Richmond Hill, ON]

What's that?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

The member asks what that is. That is a private member's bill being hijacked. That happens. One of his colleagues in the immigration committee, for example, had a bill that went to committee. The former critic for immigration will recall it quite well. The bill was turned into something it was not intended to be. The person who sponsored the bill at the beginning had no intention of doing what the government was trying to do through amendments. It ultimately came back to the House, because it was so far out of scope, and a Speaker's ruling had to be made.

We should be valuing the importance of private members' bills. How can a private member's initiative be changed to the degree where one is going against what the private member originally wanted? If I, as a private member, bring in legislation and explain the direction I want to take it, and once it gets to committee the government makes changes to that legislation, it has, in essence, hijacked my bill.

I think my bill is ranked at number 200. Hopefully mine will be voted on and it will go to committee. It is not easy to get that far.

The member for Edmonton—St. Albert has been very successful in getting it to the committee stage.