Information & Ethics Committee on March 21st, 2011

[The Chair, Liberal, Shawn Murphy]

I will now call the meeting to order.

I want to welcome everyone here today. This is the 50th meeting of the Standing Committee on Access to Information, Privacy, and Ethics.

The committee is very pleased to have today witnesses from CBC/Radio-Canada, represented by the president and chief executive officer, Monsieur Hubert Lacroix. He is accompanied by Maryse Bertrand, vice-president of real estate, legal service, and general counsel. And from the Office of the Information Commissioner of Canada, we have the Information Commissioner, Suzanne Legault.

On behalf of all members of the committee, I want to extend a welcome to everyone.

We're going to ask for opening comments. First of all, we're going to turn the floor over to you, Madame Legault, and then we're going to hear from the CBC. But before we do that, I want to make a few comments, just to set the context and the framework of today's meeting.

As everyone is aware, Canada has access to information legislation. In a nutshell, it means any Canadian citizen or resident can, upon completing the required application forms and paying the required fee, obtain information that is in the hands of the government that is not protected by privacy, national security, commercial interests, or for other legitimate reason. This legislation applies to all government departments and now most government agencies and crown corporations. However, this committee, unfortunately, has seen situations where some government departments and agencies are basically not following the legislation, and instead of providing information in 30 days, they're averaging 70, 80, 90, and in some cases in excess of 150 days. They are refusing to disclose information for no apparent or legitimate reason. On the other hand, many departments and agencies have no difficulty whatsoever in complying with the legislation, and they deserve the commendation of this committee.

Each year the Office of the Information Commissioner does an audit or analysis on a number of departments and agencies and the office rates them. This report is tabled in Parliament and is of course available to the public. In last year's report card, the Information Commissioner reviewed ten departments and agencies. Some, through strong leadership, were outstanding or above average. Unfortunately, five were unsatisfactory or received an F from the commissioner. These departments or agencies were National Resources Canada, CIDA, Correctional Services Canada, Canadian Heritage, and Environment Canada. Foreign Affairs and International Trade received an off-the-chart rating and a red alert. These ratings, of course, are of great concern to this committee.

Two weeks ago, the Information Commissioner tabled her 2009-10 report. She reviewed eight smaller agencies or offices of officers of Parliament. In this review, six of these offices received an above average rating. These offices were the National Arts Centre Corporation, the Office of the Auditor General of Canada, the Office of the Information Commissioner of Canada, the Office of the Privacy Commissioner of Canada, Atomic Energy of Canada Ltd., and VIA Rail Canada Inc. All members of this committee want to thank and congratulate the management and staff of these organizations.

Unfortunately, not unlike last year's report card, there were two crown corporations that received an unsatisfactory assessment. First, CBC receive an F, or an unsatisfactory assessment, and, more alarming, Canada Post received a red alert or off-the-chart rating. It's quite likely that Canada Post will be called before this committee to explain why they have failed, if you accept the assessment and information given to us by the Information Commissioner, and refuse to follow the access to information legislation.

Today, as I've already indicated, the committee is dealing with the CBC. The CBC is in a little unusual position, in that their reporters and producers use, quite correctly, I hasten to add, Canada's access to information legislation in preparation of their products. Again, if you accept the findings of the Information Commissioner, they're in the dubious position of explaining to Parliament, through this committee, why they want every department and agency within the Government of Canada to follow this legislation, whereas they, themselves, do not follow the legislation. Again, that's if you accept the findings of the Information Commissioner.

The committee takes this matter very seriously and is pleased to have the Information Commissioner with us today, as with the chief executive officer of CBC.

I'm now going to turn the matter over to the Information Commissioner for her opening remarks. Again, welcome to the committee.

[Suzanne Legault, Information Commissioner, Office of the Information Commissioner of Canada]

Thank you, Mr. Chair.

My remarks today will address the report cards contained in my special report entitled “Open Outlook, Open Access”. I will also briefly speak to my office's experience with the CBC in investigative matters. However, before I discuss these two issues, Mr. Chair, I would like to express my thanks to the committee for the follow-up it did on last year's report cards exercise. The report and the work of the committee in this regard ensured that federal institutions are held accountable for their performance in complying with the act.

As noted in this committee's twelfth report, the purpose of the report cards is not to chastise institutions. The process is a tool at my disposal to effect greater compliance with the requirements of the act. It allows me to see compliance issues in their full context and to recommend meaningful solutions. With this in mind, my office undertook a report card on the performance of the CBC and made four recommendations to the institution on ways to improve their compliance with the act.

Right from the start, in September 2007, CBC struggled to respond to access requests due to an initial downpour of requests in the first few months that it became subject to the act. Subsequently, my office received 534 complaints against the CBC between September 2007 and April 2008, which represented 22% of all complaints registered by my office that year. Most of these complaints were delay-related. In fact, since 2007 the CBC has consistently been in the top three institutions against which complaints are filed with my office.

As you mentioned, the CBC received an F rating because of the delays in processing access requests, the high deemed-refusal rate, and the long average completion time, which is 158 days. These delays were largely due to the backlog of requests CBC carried over from the previous years. We noted, however, that they also reflected long retrieval, review, and approval processes.

Towards the end of 2009-2010, we saw signs of improvement in CBC's performance, in terms of backlog reduction and a shorter response time for new requests. As a result, the number of delay complaints registered by my office has decreased this year.

Prior to coming here today, I surveyed some of my investigative staff to get their views on the CBC's performance in the current reporting period. They felt that the CBC has made efforts to improve the effectiveness of their internal processes and to provide more timely responses to requesters. Most notably, they indicated that there is good collaboration with the new ATIP director at the CBC.

I noted in my special report that, as a result of the legislative changes introduced by the Federal Accountability Act, the act now has an increased level of complexity that causes uncertainty in the legal interpretation of these new limitations. For example, under section 68.1, the Act does not apply to any information that is under the control of the CBC that relates to journalistic, creative or programming activities other than information that relates to its general administration. Consequently, my office deals with more complaints against new institutions and is involved in more litigation, including one involving Canada Post.

The CBC has refused to provide investigators in my office with records that it claims are excluded by section 68.1 of the Access to Information Act. This approach, it is notable, differs from that taken by Atomic Energy of Canada Limited, which provides my office with all information it claims to be excluded under their section 68.2 of the act.

I fundamentally believe, Mr. Chair, that an independent review of the records or information withheld by CBC is essential to ensure that the exclusion has been properly applied.

The scope of my investigative powers in relation to CBC's refusal to disclose records under section 68.1 is, as you know, the subject of litigation. In the first instance, the Federal Court ruled in favour of such an independent review by my office. The court explained that I must have the authority to determine in an objective and independent fashion if the records fall under the ambit of the exception and if they qualify for exclusion. This decision is currently before the Federal Court of Appeal, which limits my ability to make further comment on the matter. However, I note that due to this ongoing litigation, my office has suspended investigations in more than 180 refusal complaints relating to section 68.1. Some of these complaints go back as far as 2007.

Mr. Chair, the delays caused by this litigation have had a significant impact on the ability of the public to obtain public sector information in a timely way. I'm concerned that there may be further delays once these legal proceedings are over. It has been the experience of my office, while investigating some of our old complaints, that an institution's access request processing file has been incomplete, and responsive records have often been difficult to find and retrieve; electronic information has sometimes been deleted, and personnel knowledgeable about the requested information have no longer been available. Therefore, I would suggest that a best practice for institutions in which access to information requests are subject to litigation would be to ensure that the search, retrieval, and processing of responsive records be completed and held in abeyance until all proceedings are completed. This will ensure that no further delays occur after the end of litigation.

I urge this committee to do what it can to ensure that the recommendations made to the CBC in its report card are implemented and that the impact of the delay resulting from the ongoing litigation is minimized.

Thank you.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Madame Legault.

Now we're going to hear from the CBC and Monsieur Lacroix.

[Hubert T. Lacroix, President and Chief Executive Officer, CBC/Radio-Canada]

Mr. Chair, members of the committee, thank you for the opportunity to talk with you today.

I am sure you have seen stories about CBC/Radio-Canada and access to information. And almost all of that likely in the Sun and Le Journal de Montréal newspapers, owned by Quebecor. I'll talk a little bit about that in a minute, but first I would like to address our performance under the Access to Information Act.

We received an "F" for the year ending March 31^st, 2010. No one at CBC/Radio-Canada finds that grade an acceptable one, and we have been working to ensure that it is not repeated. In fact, in her report and remarks, the commissioner pointed to our improvements since March of last year, and I can tell you that we appreciate the recognition.

Let's look at the record on deemed refusals for example. When we came under access, our resources were frankly overwhelmed by an unpredictable volume of requests. We had hired three full-time and one part-time staff for the ATI office based on the advice we had received from other organizations about how many requests we could reasonably expect in the first year. No one predicted we would receive 434 requests in the first two months alone. This led to complaints about delays in responding within 30 days—the deemed refusals.

In 2007/2008, our deemed refusal rate was about 80.5%. We have worked very hard since then to fix this. We've dedicated more resources—we now have seven full-time staff to process requests. We've developed better internal procedures, and we've worked collaboratively with the commissioner's staff to respond to complaints in a way that is prioritized and transparent. I can tell you that our record has improved every year since.

Last year, as the commissioner reported, our deemed refusal rate was down to 50.7%. This year, to the end of February, it has fallen to 20.17%. In fact, in this fiscal year we have received one deemed refusal complaint, which was subsequently withdrawn.

The average number of days it has taken to respond to a request has also dropped, from a high of 187 to 61. As I said, we're working at this and we are committed to meeting the commissioner's expectations.

We've also been doing more. This year we posted on our websites over 24,000 pages of documents that have been released under access to information so that they are easily available to any Canadian. These documents include information on agendas, audits, policies, and retreats, as well as all invoices submitted with the expenses of senior management. This is in addition to the expense reports we already publish proactively each quarter. As you know, posting this material goes beyond what is required under the act. In fact, no other federal institution has made so many access documents available on its websites, and we will enhance this service and keep adding additional categories of information in the months ahead.

We continue, though, to receive a large volume of requests for access to information. In fact, of the organizations graded in the commissioner's most recent report, we recorded the highest number of new requests: 247 for the year ending March 31, 2010. The next closest was 108 at Atomic Energy of Canada. Canada Post received 78. The Information Commissioner received 28. In total, as of March 4, CBC/Radio-Canada has received 1,340 requests for information under the act. We've responded to 1,307 of those and released over 77,800 pages of information.

One would think that all of these requests reflect Canadians' interest in CBC/Radio-Canada, but by its own admission, most of these requests have been filed by Quebecor Media Inc. They have every right to do so, of course. Our own journalists use access to information to support their reporting, as the chair pointed out a few seconds ago. The difference is that we don't use ATI to seek information about our competitors and we don't use it in a campaign to further our own commercial interests. Quebecor newspapers insist they are, to quote them, “holding the public broadcaster to account”. However, that's not what they call their series. They call it “Down the Drain”, and the 66 stories they have run under that banner demonstrate that their motivation is to attack a competitor and to promote and benefit their own news channels.

For our part, as strong believers in accountability, we will keep improving our performance in handling access to information requests. But when others use that information to distort or misrepresent the facts about the public broadcaster, we will speak out.

I think I should also say a few words about the case between CBC/Radio-Canada and the information commissioner that is currently before the federal court. CBC/Radio-Canada is the only journalistic organization subject to access to information. Parliament recognized that our independence as a public broadcaster needed to be protected and, so, specifically excluded from the act information that relates to our journalistic, creative or programming activities.

The commissioner wants to be able to review material that is excluded from the legislation. We believe that only a judge should have the right to demand the disclosure of information that relates to our creative activities or is journalistic or program-related. It is important to clear up any confusion over the rules under which we operate.

Finally, a word about accountability. CBC/Radio-Canada is a $1.7 billion corporation. Two-thirds of that comes from Canadian taxpayers in our parliamentary appropriation. I believe Canadians should be assured that such an investment delivers value to them, not just in terms of the services they can see and hear every day, but in the way we operate. That is why each year we report on operations to our minister, to the CRTC, and to Parliament. It is why the Auditor General reviews our books annually, with a special audit every 10 years; it is why we post on our website the travel and hospitality expenses of our senior executives; and it is also why we are subject to access to information.

We recently published our 2015 strategic plan, a road map for what Canadians can expect from their public broadcaster over the next five years. With this plan, which is on our website, comes specific metrics to measure and report on our progress twice a year.

It is through all of these measures, Mr. Chairman, that I believe Canadians will have confidence that their investment in CBC/Radio-Canada is a good one.

Maryse and I would be happy to take your questions.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Monsieur Lecroix.

We're now going to go to the first round--that's seven minutes each--and we're going to start with Mr. Easter.

Mr. Easter, you have seven minutes.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair.

And thank you, witnesses.

One of the concerns with some of the agencies, and not only your own, not only CBC, was that when the government applied access to information to them--the Canadian Wheat Board is another one.... There are certain people out there who really want to use access to information, I believe, to either find reasons to attack the CBC or the Canadian Wheat Board or find ways in which they might be able to gain commercial advantage. That happens with some agencies, and I think CBC is one and the Canadian Wheat Board is another.

In any event, you go into Quebecor somewhat.... You do say that you've received 1,340 requests for information under the act. How many of them would be from regular citizens and how many would be from Quebecor? Do you know?

[Hubert T. Lacroix]

Sir, as you know, the identity of the requester is something that is not made public. However, Quebecor representatives and people who are making these requests under the act have actually provided this information in interviews or have volunteered this information. Based on that, to the best of our knowledge, out of the first 430-some in the first couple of months, 400 came from the same source, Quebecor Media Inc. When we were up to about 1,100...about 800 of those requests also came from Quebecor Media Inc. So you can actually forecast this to about 1,340 and it gives you an idea of what the numbers would be. They actually said thousands, in some of their interviews, and they were very clear that they were pushing these requests on all sorts of subject matters in front of us.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Chair, I don't know where we can go on this type of thing. I'm a very strong supporter of access to information, but I'm not a supporter of access to information being used as a disruptive tool or a way of undermining an agency. As I said earlier, I think we will see that in other areas.

What this is, in my view, is probably an abuse of the system. The system was set up with the best of intentions, but this is an abuse of the system for somebody else's commercial interests or for a political agenda to get rid of or undermine our public broadcasting system, which I will admit I'm a strong supporter of. Do you have any idea how that can be handled?

On the other hand, I am concerned about the F rating for CBC, because, as the chair had mentioned earlier, we all use access to information, and in particular CBC journalists and reporters do, and they expect departments, the government, and others to abide by the rules. So an F rating isn't very good.

We're kind of caught in a quagmire here. We want to see the legislation abided by, but how do you prevent frivolous access requests or those for other political agendas from monkeying up the system?

[Hubert T. Lacroix]

I have a couple of comments, Mr. Chairman, on that question.

First off, Quebecor has all the rights of any other citizen in this country to make requests under the act. That's not the issue.

We are disappointed with the F rating. We are working at making this better. You heard that the numbers are better. The commissioner, in her remarks when she tabled her report, actually alluded to them. She alluded to them again today. We're not satisfied with that, and we're going forward. The law in its present state right now doesn't have anything that covers “frivolous” and who decides what frivolous is in terms of the requests that are made. We just want to make sure everybody understands the situation we're in and the environment under which we play.

[Wayne Easter, Liberal, Malpeque, PE]

In those areas that relate to your journalistic, creative, or programming activities that you talk about—and you got a dispute with the Access to Information Commissioner there—I don't know whether you can or not, but can you give me examples of areas, beyond those words, of what that applies to? One of the complaints we will have against the government is that national security will be used as a reason for not providing information or cabinet confidence. Sometimes these little silos are used to prevent legitimate information from coming forward. Can you expand that a little further?

[Hubert T. Lacroix]

Absolutely, sir.

As you read, the act provides for an exclusion on all of our journalistic, creative, and programming activities. Those words are not words that the legislator chose with no purpose. Those are the exact words that come out of the Broadcasting Act. So they've lifted that, and I assume, in the way the act was drafted, that they wanted to ensure the integrity of the activities of the national public broadcaster. That's very important.

I'll give you an example of one of our journalists, let's say in Quebec, doing an important probe on the construction industry, having a couple of journalistic sources, and these sources not being identified to even the management team at CBC/Radio-Canada. Under the Broadcasting Act, certain of the information that we have in our hands is not even available to our minister or the Minister of Finance, or is not disclosable because it's protected by these words. The example of our sources of information is, I think, the most obvious one.

Maryse, would you like to add something to that?

[Maryse Bertrand, Vice-President, Real Estate, Legal Services and General Counsel, CBC/Radio-Canada]

Thank you.

Actually, Hubert has described it very well. The greatest fear we have concerning the application of the act is with regard to the protection of our journalistic sources. As Hubert indicated, there's a system in Canada where even a court does not get access to that information unless a very specific test, a very rigorous test, is applied by the judge.

What essentially the litigation with the commissioner is over is whether we're going to have a two-speed system where, on the one hand, a court has to go through a rigorous process in order to see the names of our sources, and the commissioner does not.

[The Chair, Liberal, Shawn Murphy]

Thank you, Mr. Easter.

Madame Freeman, sept minutes.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Good afternoon.

I would first like to thank Ms. Legault and Mr. Lacroix for coming to testify today. I also want to point out the excellent work of CBC/Radio-Canada, which is most appreciated in Quebec as a source of culture and information. It is a considerable asset for Quebec society in all aspects.

Having said that, I would like to ask Ms. Legault a question.

When you did the performance evaluation, did you take into account CBC's unusual situation? By "unusual situation", I mean the incredible number of requests made to CBC in a very short period of time. It was understood later that it was a single requester who made most of those requests. Have you seen this kind of situation in other departments?

[Suzanne Legault]

The performance report card is quantitative for the most part. We evaluate whether the responses to the requests are provided on time. As part of our investigation into cases in the first year that CBC was subject to the access to information measures, we took it into account. In fact, the commitment dates had been negotiated with CBC to respond to the number of requests received in the first year. All the same, the commitment date covered a period of one year and it had been taken into account in the investigations.

You asked me if I have seen this type of situation in other departments. The answer is yes. In this year's annual report, I am going to discuss a similar situation involving another government institution. At this time, there are no provisions in the federal legislation that allow us to determine whether the requests are frivolous or vexatious. Other legislation allows this. Nor is there a provision like the one suggested two years ago by former commissioner Marleau as part of his recommendations to this committee. He suggested that there be a provision to make it possible to obtain an extension when a number of requests are submitted at the same time by the same requester. This does not exist in the current legislation.

Obviously, when we prepare a report as part of investigations relating to this type of situation or when we prepare a report on performance, we cannot really take this into consideration. We can only relate certain facts to explain the context, which is what we did in our report.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

If I understand correctly, Ms. Legault, you gave a score of "F" in accordance with the tools provided by the legislation and, in accordance with this legislation, you have to use a factual approach. With regard to Mr. Marleau's recommendation concerning frivolous or vexatious requests and extensions in the case of requests from a single requester, would you support those kinds of amendments?

[Suzanne Legault]

Yes, particularly if, as I heard recently, the government considers increasing the fees imposed on requesters. It would be a sort of user fee. I would not support it at all. The act needs to be amended and, in my opinion, certain examples are more appropriate than others.

Having said that, the frivolous and vexatious requests are very rare. I've been doing this job for about two years now, and I have not had to deal with that kind of situation. I am issuing a warning here, given that I am going to mention it in my annual report once we have completed certain investigations this year. It really must be a review mechanism. What is frivolous and vexatious to one person, may not necessarily be so for the commissioner, when the review is done.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

In the case we are looking at, the matter of the extension is much easier to evaluate, isn't it?

[Suzanne Legault]

Yes, it should really be a more objective procedure, based on the number of requests submitted by the same requester within a very limited period of time. Under those conditions, the institution would be able to get an extension.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Ms. Legault, I am going to ask you one last question before asking Mr. Lacroix one.

Given what you've been able to observe, in other words, the percentage of deemed refusals going from 57.7% to 20%, the delay going from 185 days to 61 days, and there no longer being any complaints, we can imagine that, right now, the rating would not be an "F".

[Suzanne Legault]

I can't say that for certain. The information that we were provided, specifically the information in the performance report cards, focuses on the past fiscal year. I would like to clarify that, over the course of the past fiscal year, there were not 537 requests made by the same requester at the same time. There were a number of them.

Having said that, there really seems to have been improvements this year. It's clear in terms of the complaints. The information that I gave you will help you see that, now, the complaints end much more often in a refusal than a wait.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Mr. Lacroix, the information commissioner made four recommendations for you: show more leadership in terms of access to information at CBC; submit a multi-year plan; provide training to employees; and bring the number of deemed refusals to zero.

Can you tell us if you have already begun to work on this and, if so, what progress you've made?

[Hubert T. Lacroix]

Absolutely. The service responsible for everything relating to access to information is run by Maryse. In a few moments, she'll give you some details about leadership and the resources that we have added to ensure, with the 22 information coordinators who provide liaison, that the processes are better.

Like everyone here today, I am not happy with the "F" rating that the commissioner gave us. There is no doubt about that. We are committed to improving the situation. We are working on this and we plan to meet Ms. Legault's expectations.

Maryse, would you like to talk about the additional resources?

[Maryse Bertrand]

Yes, I'd be happy to.

As we mentioned, we initially had three and a bit resources. Now there are seven and a half resources. For the year starting April 1^st, we added one and a half resources to the 22 coordinators working in our organization. These people help us do this work.

[The Chair, Liberal, Shawn Murphy]

Merci, Madame Freeman.

We're now going to go to Mr. Siksay for seven minutes.