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.