Information & Ethics Committee on March 21st, 2011

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

Thank you, Chair.

Thank you to the witnesses for being here today. It's very helpful that you're present.

I want to continue with what Madame Freeman was just asking Monsieur Lacroix and Madame Bertrand.

One of the recommendations of the commissioner in the report card dealt with the question of reducing the deemed refusal rate to zero. In the CBC's report, you say that a deemed refusal rate of less than 5% appears to be a realistic target. It concerns me a little that the CBC seems to be saying they're not going to get to zero, they're going to set another target, whereas I think complying with the law might require a zero target. Can you tell me why you're talking about 5%, instead of reducing to zero?

[Hubert T. Lacroix]

We have to deal in an environment that is constantly changing in terms of numbers of requests. We will raise that bar, Mr. Siksay, and the intention is to meet the commissioner's recommendations over time.

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

Has it changed since you responded to the original recommendation? Would you now say that your goal is to meet the zero target?

[Hubert T. Lacroix]

Our goal is to ensure that when Madame Legault puts out her next report or follows up on the recommendations she made to us, she will be pleased with what she sees.

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

Madame Legault, Madame Freeman was also asking you if a new grade was coming for the CBC, a mid-term grade. I know you said it wasn't possible to do that because I know you go through a very extensive process on your report cards, but could you give them a different grade at this point from what you've seen? Are the categories where improvement has been made significant enough to at least consider changing that grade to something else?

[Suzanne Legault]

I'm reluctant to change a grade without having seen a full year's analysis of data. I don't do that. I have noted improvements. I'm satisfied with the improvements. The reason I'm reluctant is that it has happened in the past that with the best of intentions people say in their responses to the report cards that they will follow up and that they will implement action plans, and they do not follow through. So we will see with the follow-up.

I'm pleased with the way our investigations are going with the CBC, with the cooperation we're getting with the CBC as part of these investigations. I'm pleased to see that the delay complaints have gone down significantly. We're now dealing with refusal complaints, which is where I always say all institutions should be.

As for deemed refusal, I agree with you. The law says no deemed refusal, and that should be everybody's goal.

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

I know you can't comment on the court case related to the exclusion issue, but I wonder if in other jurisdictions there is helpful guidance. Is the exclusion clause in our law different from what we find in other jurisdictions?

I know other public broadcasters are subject to the freedom of information laws of their countries. From your discussions at CBC/Radio-Canada with other public broadcasters, and commissioner, from your conversations with other commissioners who have roles similar to yours, are there improvements that need to be made in the Canadian law? Is the Canadian law different from that of other jurisdictions? Are there other jurisdictions that do it better? Have other public broadcasters had problems similar to those that CBC/Radio-Canada feels it has had?

[Maryse Bertrand]

I'll take that one, and Madame Legault can chime in.

We're going to be circumspect. We are in front of the court, and out of respect for that process we'll limit our remarks to the generalities.

As to the actual litigation with the commissioner, it's over a point of procedure, an important point of procedure. It's whether or not she can actually look over our shoulders, as it were, and see for herself what the information is about. I'm not aware that the process is the same in other jurisdictions. What we do have in common with the BBC is the infamous exclusion about programming and journalistic and creative activities. But in respect of the process, I'm not aware that their process is the same as ours.

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

Madame Legault.

[Suzanne Legault]

It's important to understand that the litigation is not about the meaning of journalistic source programming or created material. That is not what is before the court at this point. What is before the court is my right to review the records that are the subject of an access request where CBC alleges that section 68.1 should be applied. So it is about the right of independent review by my office of these records, to determine whether the institution has applied the exclusion appropriately. That's the subject of the litigation right now.

As to other jurisdictions, I asked my team to look at what's going on in Britain with the BBC. There was also litigation in the BBC. The definition is a little different over there. But that information is excluded from the purview of the act as well. It's different in the U.K. There's the Information Commissioner and there's an information tribunal, which has the right to review everything de novo. That same issue was before the court, the information tribunal, in the U.K. The information tribunal determined that it had the right of review and that the Information Commissioner had the right of review. I believe this is the case, but I'm not strong on that point. We could make sure that what I'm saying is accurate and provide that to the committee. I have asked my staff to review the matter.

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

I have one other question for CBC/Radio-Canada. Today the commissioner made some suggestions about how to prepare for the resolution of the court case. Work should be under way to prepare a response to what's outstanding, without any further delay. I'm wondering if these are suggestions that CBC/Radio-Canada is prepared to carry out.

[Hubert T. Lacroix]

We'll look at the words again, but I just want to make sure, Mr. Chairman and Mr. Siksay, in particular, that you understand that information is part of what we do every day. It's our mission. It's our raison d'être, and the last thing we're going to do is not comply with the law.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Siksay.

We're now going to go to Mr. Calandra. Mr. Calandra, you have seven minutes.

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

Thank you, Mr. Chair.

Thank you all for coming here. We've been waiting for some time. I know that we've been talking about open government for a bit. Your appearance was a bit delayed, but I appreciate it. I know that there's a lot going on.

I just wanted to ask you something, Madam Commissioner, just to be absolutely certain. We were told that the situation has been improving, but that at this point you haven't been reviewing anything that would allow you or lead you to change your grading at all in any way, shape, or form.

[Suzanne Legault]

I'm just saying that I don't have the full data set to give you another grade on the report card. There's a fairly lengthy questionnaire my office goes through with an institution. So I'm not prepared to do that. What I'm prepared to say is that there are significant signs of improvement.

Just as an example, Monsieur Lacroix stated that it now takes 61 days to process requests, whereas the information we have in the report card says 51 days. I'm a little bit puzzled by that.

What I'm saying in terms of giving another grade is that I don't have the data in front of me. What I have here in the report card relies on what the CBC has told us, as part of our questionnaire, and there are significant signs of improvement. There are also significant signs of improvement in relation to delay complaints in my office this year.

Yes, there are definite signs of improvement. They've accepted our recommendations. We shall see next year.

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

The act doesn't, I know, but does your office discount access to information requests? I guess this would be a question for both of you, including Mr. Lacroix. Do you discount information requests based on who's making the request, and does your office discount them as well? If an organization is behind or is deficient, as it would appear we are here, is it less important because of who the request is coming from, or is it just a failure of an organization to meet its legislated requirements?

[Suzanne Legault]

Under the legislation, the requester's identity is protected. We don't assign or look for motives in doing our investigations in terms of why the requests are made. However, when we have situations like the one we had at the CBC, when in the first year it became subject to the act and it was in the public domain and there was one requester who had a large number of requests, we try to deal with them together. We developed an investigative strategy with the requester and with the institution so that we could maximize efficiency in terms of the investigation. That's what we do.

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

Yes.

[Hubert T. Lacroix]

I have just one point on Madame Legault's 61 as compared to 51. The information we just gave you was at February 28. It constantly changes. One of the last requests we got was to look at 50,000 pages so that we could deliver an answer.

Those numbers fluctuate over time. So Madame Legault was right about the information she has and we have. Depending on when you ask the question, she can't validate, because she hasn't seen it. So I'm not surprised that we're not getting a mid-term grade, even though I would really like a mid-term grade, because based on the information I have, you wouldn't get an F right now.

That being said, let's go back to requests made. We understand that we have an obligation under the act. We deliver the information based on the request, based on the system we've developed with Madame Legault. If you want to make CBC/Radio-Canada look good, send us 500 requests related to the administration of CBC/Radio-Canada. You will get 500 clean answers. If you want to make us look really bad, send us 500 requests directly under activities of journalistic programming or creative activities. You're going to get 500 issues. They will either be redacted or will be simple refusals to follow the information, based on our interpretation of section 68.1. It's as simple as that.

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

Welcome to the world of having to respond to taxpayers, right?

You're in a difficult spot, because clearly, over $1 billion is provided to the CBC each year. Canadian taxpayers will agree that they have a right to know how those dollars are being spent, for one. Second, the commission has clearly identified some problems within the system. There's been a refusal rate of 57.7. You'd agree, I imagine, that it's a very bad number.

Are you suggesting that the CBC be treated differently? Because it is a public broadcaster and because it gets over $1 billion from the taxpayers, should it be treated differently than all of the other organizations, including Parliament, that are subject to access to information?

[Hubert T. Lacroix]

Not at all, sir. The $1.1 billion that we get we're very grateful for. It allows us to do great things for Canadians. It allows us to, in two languages, deliver programming that basically goes from coast to coast to coast—six time zones—programming that we think resonates with Canadians. If you look at our market shares or what Canadians are doing with our programs, we've never been as popular. People go to our websites. So we're very happy with the results and very grateful for the $1.1 billion that we get from government, allowing us to do things that no commercial broadcaster can do because there is no economic model to deliver some of the stuff we do.

Let's go back to whether we should be treated differently. Absolutely not. We're not happy with the F, as I told you.

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

Yes.

[Hubert T. Lacroix]

I also told you that the 57.7% is now down, according to our calculations, to about 20%, and we look to improve. That's where we're going.

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

Commissioner, one of the recommendations in the report is

...that the President of the Canadian Broadcasting Corporation demonstrate leadership in establishing access to information as an institutional priority without exception. Access to information is a mandatory program and its associated legislated duties within a federal institution must be paramount.

It has also been suggested in another submission that we had before the committee that CBC, because of its knowledge and its expertise in actually requesting or seeking access to information, should have been more prepared and should have potentially been a leader within government with respect to providing access to information. Do you think you were prepared? And do you think you lived up to the responsibility that you have to Canadians? And are you prepared to show the leadership that is required to make sure the F grade becomes an A?

[Hubert T. Lacroix]

You've heard from me the leadership involvement in access to information. I'm sitting here, and I told you that I wasn't happy and that we're working very hard to improve on our situation.

I want to go to the history—two seconds, it's very important—because yes, we knew access to information was going to affect CBC/Radio-Canada. So we went around and we did our due diligence. We went to the Treasury Board. We tried to find out from the Treasury Board what their experience was and what the experience of different organizations was. We went to the BBC. We asked the BBC, how are you dealing with this? Remember the BBC has 30,000 employees, three times more than we do. It serves about 75 million people, about two and a half times what we do. In 2005, when they started this process, they were getting about 80 requests per month. Based on the fact that they had 10 people inside their shop for 80 requests a month, we figured half, maybe, for a population of our size, and we staffed accordingly. No way in the world could we have foreseen 434 requests. That was simply off the chart.

So we did our diligence. We thought that we had prepared accordingly. Obviously we didn't. We were surprised, and we have been trying to catch up ever since. And as you saw from the numbers I quoted to you, we're getting better, and we're still working on it.