Information & Ethics Committee on March 21st, 2011

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Calandra.

That concludes the first round.

There are a few issues I want clarity on. First of all, exactly how many court cases are there between the two groups here? Is there just one, or is it more than one?

[Suzanne Legault]

There's one ongoing.

[The Chair, Liberal, Shawn Murphy]

Is there more than one out there?

[Suzanne Legault]

With the CBC, there's one with Federal Court of Appeal. There was another case that was brought on by a complainant directly in the first year in relation to these 300-and-some requests, and that has been decided in the Federal Court of Appeal. That had to do with the commitment dates negotiated with my office and so on. That's completed.

[The Chair, Liberal, Shawn Murphy]

Madame Legault, can you take us through a request here? There's a little bit of uncertainty or lack of clarity to this whole issue.

Some individual citizen, whether it's QMI or whatever, makes a request. I think most Canadians would agree that if it involves confidential sources in the construction industry, that would not be something that really should or would involve your office. But let's say in a hypothetical situation that the requester wanted the expense claims for a certain manager within CBC for the month of February, and CBC responded and said “No, that's programming, creative production, a journalistic thing, and we're not going to do that”. You don't have power to order.... They just fold their hands and say “No, we're not going to do that”, and then they say “We're going to go to court”. Is that what happens here?

This is not rocket science. We as parliamentarians would like to see a very simplified version, whether it requires a legislative amendment or not. Don't forget, when you're in court the taxpayer is paying both sides of this situation, and I don't assume for a minute it's cheap. Why can't we adjudicate? If it's legitimate journalistic programming and creative, we as parliamentarians would like to have it adjudicated very quickly. There might have to be an appeal mechanism, but not to drag it on so you're dealing with situations from 2007. If it's legitimate—let's say the sources on a media thing--to me that would be a journalistic issue.

Can you clarify this issue and explain just what you see the problem to be?

[Suzanne Legault]

I'll try to answer that question.

First of all, I don't want to use any specific example. We do have a lot of complaints in our office in relation to the CBC, so I don't want to use your example, for instance, Mr. Chair, simply because I have to preserve my objectivity. But I can say the following.

When a requester makes an access request to a federal institution, any federal institution, the federal institution then has to collect all of the responsive records. Then they will go through the records and they will apply exemptions or exclusions that are provided for under the legislation. They make their own determination as to which exemptions or exclusions they think should apply under the circumstances, and they have to exercise their discretion in terms of the exemptions in deciding whether or not the information should be disclosed because it's in the public interest or it should not be disclosed. Then they send the redacted documents to the requester. If the requester is not satisfied with the response, they can then make a complaint to my office.

Now, when we do investigations, normally we obtain the documents, all of the documents, the unredacted documents, from the institution, and we review all of the exemptions or the exclusions that have been applied and we make an independent and objective assessment as to whether or not we agree with the institution under the circumstances. Then we make recommendations to the institution. As you know, I have no powers to order the disclosure of any documents; I can only recommend. Through this process we obtain the representations of the requester or the complainant at that time. If the institution disagrees with our recommendation, they can refuse to accept our recommendation—usually it's because they refuse to disclose information—and then two things can happen: I can take the matter to Federal Court, with the consent of the complainant, or the complainant can take the matter to court himself or herself. I have no powers to order disclosure of anything; I can only make recommendations.

That's how it works. The only exception to this rule is cabinet confidences, because there is a specific process in the Canada Evidence Act, as you know, under section 39, for the certification process. So that's a different process.

[The Chair, Liberal, Shawn Murphy]

Okay. Perhaps before we go to the second round, I'll go to you, Monsieur Lacroix.

A lot of these hundreds of ones that you're not given for this section 61...and I don't think we would argue that confidential sources should be disclosed or get right to the creativity or the program, but for most of that stuff, why don't you give it to the Information Commissioner, get it adjudicated upon, get the file closed, and move on, so that Canadians have more assurance that the law is being followed?

[Hubert T. Lacroix]

There are two pieces to your question, sir. For everything that is about journalistic programming or creative activities, as you heard, and as Madame Legault has referred to, we don't think she has a right to look at this because this is clearly, if you read the Access to Information Act, excluded from the legislation. Everything else is already posted and we make that material available. If you want my corporate expenses, they're on our website. If you want the chair's corporate expenses, they're on the website--all of our senior executive team. So everything that has to do, sir, with the administration of our corporation, there's no issue there, and it's fair game.

[The Chair, Liberal, Shawn Murphy]

Okay.

On the second round, Dr. Bennett for five minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thanks very much

Just carrying on from there, if you had access to the sources in the construction industry and it was sitting in your office, how would you protect that from being ATIP-able in your office?

[Suzanne Legault]

The provision that subjects us to access to information does not cover documents that we receive from institutions; it's only the documents that we create as part of our investigation, that my office creates as part of the investigation.

[Carolyn Bennett, Liberal, St. Paul's, ON]

If we go back to what Commissioner Marleau's advice was...it seems that there is an ability to game this, as we saw with the gun registry. If you deposit 200 requests on one day in an office of seven people, you can make that office look bad. If you are a competitor, you have the ability to decide it's in your best interest to make your competitor look bad.

So you are saying that even in your term and even since Commissioner Marleau, there has been a request to the government to get this changed, such that there would be an extension if an unreasonable number of access requests went in from the same requester in a certain period of time; it would be viewed to be almost an obvious extension.

[Suzanne Legault]

I think it would be appropriate to have an extension that dealt with multiple requests in a very short period of time by the same party. At least it would allow the institutions to request an extension, and that would be provided for under the legislation.

[Carolyn Bennett, Liberal, St. Paul's, ON]

In the audit counting of it, are the requests viewed as needing an exclusionary exemption deemed as a refusal in a certain way, or are they ones that end up having complaints come?

You've said there isn't anything for frivolous and vexatious kinds of access requests in the legislation as it is right now, whether it's a hairdresser somebody uses, what they've spent on their boat, or something that doesn't seem to have any relevance that the corporation doesn't have access to anyway--it looks like a refusal, but it's something they don't even have the documents for.

What is the provision for them to be able to say this isn't anything we have information on, without it looking like a refusal?

[Suzanne Legault]

They can just say they have no records that are responsive to their requests. That is currently done under the legislation. If the requester is not satisfied with this response, they can make a complaint to our office. We investigate whether, in our opinion, there are or aren't responsive records to the request.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Do you have the ability to look at the complaints you're getting to find out whether they seem to be unduly from competitors and people who continue to complain to you about things that quite clearly are not possible to deliver on? What is your power or your ability to deal with vexatious or frivolous complaints to your office about those kinds of things?

[Suzanne Legault]

There is no provision for anything that is frivolous and vexatious under the legislation. I would say that most if not all information commissioners before have not supported such an amendment. I'm not like that. I think that having “frivolous and vexatious” in the legislation would be appropriate. It would need to have proper safeguards. It should not be left to the determination of the institution only whether something is frivolous and vexatious. I think there has to be a review by my office.

There is also no discretion under the legislation on my part. The act says that once I receive a complaint I shall investigate. So I have no discretion to decide not to investigate certain things. As we discussed, there is no extension provided for multiple requests in one day.

So there is very little mechanism in the legislation to at least allow the Information Commissioner to make those kinds of determinations. I believe in Ontario the commissioner can actually say “I'm only going to investigate so many complaints by the same person”.

In July of this year I received 237 complaints from one complainant. They certainly all came in one month against the same institution. So the CBC is not necessarily the only institution that faces similar challenges at times.

[The Chair, Liberal, Shawn Murphy]

Thank you, Dr. Bennett.

Mr. Abbott, you have five minutes.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

Mr. Lacroix, I think you would agree with me that you're comparing your ability to get the job done in terms of news gathering and news reporting. Being an institution funded by $1.2 billion of taxpayers' money, you're comparing that with an institution like the Sun chain, which doesn't have $1.1 billion and that kind of support.

It strikes me that some of your answers, with the greatest respect, have been that you should be treated on the same level, as far as access to information is concerned. In other words, you're saying “Why should we, in spite of this $1.1 billion, not be seen as a news-gathering and news-reporting institution, exactly the same as any commercial enterprise?”

[Hubert T. Lacroix]

Mr. Abbott, I'm not sure I'm following your comment, because Quebecor, as you know, is not subject to access to information. We're the only journalistic organization that is. As I think I said a few minutes ago, we're very aware of the fact that they're entitled to make whatever request they want, and I don't want special status.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

What I'm trying to say is you are a news-gathering and news-reporting institution. They are a news-gathering and news-reporting institution, and yet you have access to a pretty gigantic pot of money. For example, if I take a look at a report they did on March 24 last year, it points out that in the testimony of Mr. Rabinovitch they had asked for the briefing material for Mr. Rabinovitch, and fundamentally received a blank page.

You may be aware that the briefing books of cabinet ministers can't offer blank pages. Why do you think the ability of going through access to information with a cabinet minister should reveal a heck of a lot more than the CBC was prepared to reveal? You're telling us your executives are fair game. Apparently they're not, because they're not treated the same as a cabinet minister. And yet your institution is claiming to be a crown corporation and therefore it should be treated differently under this access law. I'm finding this very confusing.

[Hubert T. Lacroix]

Mr. Abbott, we are not seeking special privileges. We are not happy with the F. We're improving, and we will continue to improve, so the next time Madame Legault shows up here she doesn't have to have me on her left trying to explain why we have an F and she's not a happy camper. That's the first point. We are improving and we are completely aware of the mark she gave us.

In no way do we, however, with the $1.1 billion the government gives us to do things that no other commercial broadcaster can do.... And I've said this many times in front of all sorts of parliamentary committees: there is no single broadcaster that would do the things we do, because there's no economic model for them. You can't cover the north as we do and have an economic model.

So let's go back to the journalistic integrity of what we do and why the act has an exclusion. The act says that the information that is related to our journalistic programming or creative activities is excluded from ATIP. As the person responsible for this crown corporation to which the government contributes $1.1 billion a year, perhaps, Mr. Abbott, you would be the first one to say our job is to ensure that the responsibilities bestowed on us in that capacity are important, and that when we have rights under legislation we have the right to say that because this law excludes journalistic and programming creativities from the review of the commissioner we're entitled to so state.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

How are briefing notes covered by that? In other words, if a cabinet minister sitting in the same place as you has to reveal the information in his or her briefing notes, and you're coming to us saying you are a crown corporation, I don't understand. Apparently, according to what was written here, the proposed answers to a list of possible questions you might face at committee were held back as “advice or recommendations developed by or for a government institution or a minister of the crown”. Apparently your actions would say you have more privilege to withhold information than Jim Flaherty or Peter Kent or any of the other cabinet ministers. I don't understand that.

[Hubert T. Lacroix]

In the normal course of our dealings we've received some 1,348 requests so far, as you heard. I don't know exactly what you're referring to in terms of what that request does, what the comments were, what the question is, the context in which it was made, what the briefing book was all about. If the briefing book contained programming information, clearly it falls under the exception I referred to. It's extremely difficult for me to give you a clear and clean answer, Mr. Abbott, if I don't understand the context in which this request was made. That's why in the normal course of 1,348 requests, if you have a particular concern about this we'd be happy to look at it and tell you what it is.

Maryse, do you want to add something?

[Maryse Bertrand]

In terms of briefing books, what we have determined with other organizations is that the practice very much varies. Some briefing books are withheld and some briefing books are not. As Hubert has mentioned, if the briefing books pertained to information that had to do with the programming or journalistic activities of the CBC, they would have been withheld under that principle.