Information & Ethics Committee on March 21st, 2011

[Suzanne Legault]

Well, I mean, they've explained that they also had issues with qualified staff and retention of qualified staff. I'm not quite sure how the review and approval processes work. That wasn't clear to us, in terms of how many levels or reviews the records go through before they're actually released. That's something you might want to ask the CBC.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

What process do you have when somebody makes an access request and CBC refuses on the grounds contained in section 68.1 and then you look at the request and say “No, I don't think this is covered by section 68.1”? How do the two sides resolve that disagreement? When you believe it is a legitimate request outside of the boundaries of section 68.1 and the institution says actually it can't be revealed because of the exclusion, how do we resolve that?

[Suzanne Legault]

Well, at this point, because of the position taken by the CBC in the litigation, we cannot resolve this. I cannot do the investigation because I cannot review the records. We would not make, and we never do make, a determination on an investigation only based on the wording of the requests. We do it on the basis of the review of the records that are responsive and the redactions that are applied by the institution, whether we agree or not.

[The Chair, Liberal, Shawn Murphy]

Thank you, Mr. Poilievre.

Mr. Siksay, you have five minutes.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

I want to come back to the first two recommendations of the commissioner in the report card.

Monsieur Lacroix, I want to ask what role you've taken in ensuring an appreciation of the importance of access to information at CBC/Radio-Canada. We've seen, I think, over our work in other areas that commitment from the top down in an organization is crucial to compliance, to appreciation of the importance of access to information. I know that when you responded to the recommendations you indicated some of what that's been about, but can you tell us more about how you've implemented that commitment from your office through the organization?

[Hubert T. Lacroix]

Surely.

First off, it's something that's discussed, obviously, at the senior executive team level. It's something that will be part and is part of the key performance indicators on which the members of the team that works with me every day are evaluated. It's something that Maryse Bertrand, in her role as the top of the legal side of our organization, also evaluates. On the strategic direction, you can see some of the leadership through the initiatives that were taken and the proactive disclosure and the websites and the fact that nobody else in crowns or agencies is doing what we're doing. So you can be assured of the commitment we have—and I have—with respect to that.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Would average employees of the CBC be aware of your commitment on this issue? And how would they become aware of it, if they have, or if they're not aware of it?

[Hubert T. Lacroix]

We have processes by which, when a request is made, the people who monitor the request—follow the request and get the information—understand how important it is to meet the requirements. There have been training sessions with the 22 liaison officers.

Maryse, what would you want to add?

[Maryse Bertrand]

We're going to roll out a training program in the new year, which is part of our tri-annual plan, to explain better to people—and not just to the liaison agents but to other senior managers in the organization—what our duties are under the Access to Information Act and how we take our responsibilities very seriously. We've published a lot of information on that famous web page that I was alluding to earlier, and that's basically how we communicate with the employee base at large.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Now, I know one of the other concerns of the commissioner was the retrieval, review, and approval processes and the concern that across an organization as broad as the CBC there wasn't a good retrieval process in place to meet the requirements of access to information. I know you're talking about a multi-year plan.

Can you update us, from what you've said in the report card response to that recommendation? How is progress on that? Is progress being made there?

[Maryse Bertrand]

Certainly.

In terms of the retrieval process, I wasn't there at the very beginning, but I'm not aware that this was the issue as much as the processing of the sheer volume of information that needed to be processed in order to answer the request. I think our document retrieval processes, considering the size of our organization, are adequate. They probably could be improved, like anything else, but I don't think the issue is there. We have made some changes at the personnel level in terms of the ability to get the processing of the exclusion and of the records more streamlined. That we've done already.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

[The Chair, Liberal, Shawn Murphy]

Thank you, Mr. Siksay.

Dr. Bennett, five minutes.

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

I was just asking maybe for a little bit of an explanation again about the difference in terms of what the BBC has compared to what we have here in the CBC, and also about the fact that you mentioned a tribunal as well as a commission.

[Hubert T. Lacroix]

The commissioner was the person who told you about the request that she made, I think coming from her staff, trying to find out what was going on at the BBC.

Is the question, Madame Bennett, to us or to Madame Legault?

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

It's to both of you in terms of what would be a process. Maybe the commissioner could start first in terms of what is the advantage of having both the commissioner and a tribunal. Why have they separated it?

[Suzanne Legault]

That's a good question for the British legislator in terms of why they separated it. It's a system that I'm not aware exists in other jurisdictions, in the sense that in the U.K. the commissioner has order-making powers, which is different from my office, obviously, but also the information tribunal reviews the case completely de novo. Whether it works better or not I really couldn't comment on. It started in 2005. There's quite a lot of....

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

Is it if they feel they don't get satisfaction in terms of a complaint to the commissioner's office, there's an appeal process?

[Suzanne Legault]

Yes. It's a completely de novo appeal process with the information tribunal.

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

In your court case, you can't commission or ask for documents or order documents in any other area, but when it comes to the CBC is it a different approach you're asking for?

[Suzanne Legault]

No. There are two things in your question. I think it's important to clarify.

The Information Commissioner has very broad investigative powers under the legislation. We have the power to compel people to testify under oath, and we have the power to compel the production of records in order to conduct our investigation.

The position we're taking in the Federal Court case with the CBC is that this power to review the records applies to the CBC, notwithstanding section 68.1.

What I do not have the power to do--and that's also for all institutions--is I do not have the power to order disclosure at the end of an investigation. For instance, I do not have the power to order the disclosure of journalistic sources. The only thing I can do is to make recommendations to the institutions, and that's for all institutions. If the institution should disagree with my recommendation to disclose, the matter can then go to the Federal Court. Either I would take it to the Federal Court with the consent of the complainant, or the complainant can go directly to court at that point once my investigation is completed, and that case would be against the institution.

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

In section 68.1, in the application of it within the corporation, if the Information Commissioner is not able to do it, what is the accountability that everything you've said is excluded or exempted under section 68.1 is really to be an exemption? What do you see is the oversight?

It seems that you're saying just take our word for it. Is that...?

[Maryse Bertrand]

We're not saying you should take our word for it. Parliament has lumped together in the exclusion the programming, the journalistic, and the creative activities. Essentially, when it comes down to records that fall within these three categories, if there is a disagreement about whether something should or should not be excluded, the Federal Court is there and there are some fairly clear criteria on whether or not, for example, journalistic sources ought to be disclosed as part of a record. We want to follow the existing process that the Supreme Court of Canada has determined is applicable in that circumstance.

[The Chair, Liberal, Shawn Murphy]

Mr. Calandra.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

That's even more confusing. It strikes me that section 68.1 is actually more powerful than a cabinet confidence. You have more ability to maintain things by using section 68.1 than the government has when they consider a cabinet confidence. If I were to put in an access to information request to the CBC asking what is the salary of Peter Mansbridge, would that be allowable or not under section 68.1? We've heard a lot about how the administration of the CBC is ten out of ten. I would suggest that we can't truly understand any of this unless we know all of the facts. So how would that request be handled?