Evidence of meeting #10 for Access to Information, Privacy and Ethics in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cbc.
A recording is available from Parliament.
Information Commissioner, Office of the Information Commissioner of Canada
We wanted that to be done. I think it is a great idea. It does reduce, I think, the number of requests.
We've been doing it in our office for over a year, 15 months or something like that. Requesters can just go on that and say they want the documents in relation to this request, and we just send them out. It's great.
Liberal
Scott Andrews Liberal Avalon, NL
How often has that happened where a department gets the same request?
Information Commissioner, Office of the Information Commissioner of Canada
I don't have any statistics on that.
October 25th, 2011 / 9:15 a.m.
Conservative
Blaine Calkins Conservative Wetaskiwin, AB
Thank you, Madam Chair. Welcome back.
Ms. Legault, it's good to see you again today.
I'm just going to follow up on a previous line of questioning from my colleague Mr. Del Mastro.
One of your comments that caught me a little bit off guard and got my mind thinking was your comment in regard to the.... It appears that the folks working in the access to information office at CBC seem to be making a decision on section 68.1 based on the nature of the question rather than actually retrieving the information and applying the lens of section 68.1 on the information, redacting that information, which they might feel should be protected under section 68.1, and then releasing the rest of the information to the requester.
Is that your perception or interpretation, or do you actually know that this is exactly what's happening?
Information Commissioner, Office of the Information Commissioner of Canada
As I said in my opening remarks, I looked at this on their website as I was preparing for this committee appearance. I looked at their guidelines, which are very recently published. I wasn't aware of those, and I will follow up.
This is something the committee might want to follow up on when CBC comes here. I will definitely follow up on it.
I'm extremely concerned. If it is exactly how I read it and how I understand it, I will definitely have to pursue it with the head of CBC and make a recommendation, on the face of this, that they immediately discontinue this practice.
The other thing I'm concerned about, if that is the practice, is that if there is a complaint subsequent to that, there is a 60-day timeline to make a complaint to my office. If the records were not retrieved in the first place, that creates more delays once the complaint comes to my office.
As well, I don't know what their retention and disposition authority is in terms of their records. What about electronic records? If a request comes in on the first of the month and basically no documents are retrieved, and they say to the requester that it's all excluded under section 68.1, and I get a complaint to my office 60 days later, how many records...? Electronic records, BlackBerry messages--they may be transitory records, but at the time of the request, there's an obligation to preserve those records.
So I'm really concerned about this practice. I will definitely follow it up with the head of CBC. I think it's mistaken and misguided, if they're doing that.
Conservative
Blaine Calkins Conservative Wetaskiwin, AB
It actually sounds quite concerning and quite alarming. What seems to be the case, I would guess, is that not only would they just.... We've heard from previous witnesses who've said here that there's a lot of hybrid information on some of these documents, and hybrid documents where some of the information might be section 68.1 and some of it might not be.
If the organization doesn't actually retrieve the records to look at the records, and makes the case based on just the simple question of the access question that is being asked, do you think they're simply considering the source, as in who's asking the question, and making the determination that way?
Information Commissioner, Office of the Information Commissioner of Canada
I frankly don't know.
I'm going to read to you from their document, “Guidelines for the Interpretation of Section 68.1 of the Access to Information Act”. I believe it was published just last month. I'll read this part verbatim:
Procedure applicable to CBC/Radio-Canada’s Access to Information Office
2. When, after reading an access to information request the person mentioned in the preceding paragraph
--the person with the delegated authority--
concludes that the requested information is excluded from application of the Act in its entirety by virtue of section 68.1, the information does not have to be provided to the Access to Information Office. Thus, an access to information request may be refused on its face.
That's the text in these guidelines.
So I'm very concerned about this.
Conservative
Blaine Calkins Conservative Wetaskiwin, AB
What precedents have been set in the courts that would make this policy not stand up? Does CBC have a case to even present this as a viable, bona fide policy?
Information Commissioner, Office of the Information Commissioner of Canada
Last year I had a similar case with the Privy Council Office and I also asked them to discontinue this practice. It's reported in the annual report. They were following a similar kind of practice whereby the access to information coordinator--who by the way does not have the delegated authority--would say in the face of a request that these records are probably all cabinet confidences so they weren't going to retrieve them. We strongly objected to that with the Privy Council Office, and they changed their practice at that time.
That's why I'm saying I haven't had a chance to discuss this with CBC. They're not aware of the concerns I'm expressing this morning before the committee because I looked at this in preparation for these committee hearings and it is very recent.
Conservative
Blaine Calkins Conservative Wetaskiwin, AB
In the past I made a comment to the effect that a lot of taxpayers' dollars are at stake here. Taxpayers' dollars going to the state-funded state broadcaster, taxpayers' dollars for your office, tax dollars to pay judges and to build courthouses, and so on, and a lot of money is being spent here to work this out.
The more problems you have with these refusals by CBC--and these complaints must increase the costs your office has to bear. This litigious process must be quite expensive for the CBC. What's the cost to your office through this litigious process? If those costs are so high, it would only lead one to conclude that CBC must be hiding something incredibly damaging.
Information Commissioner, Office of the Information Commissioner of Canada
I'm not going to make any comment about what CBC is hiding or not.
As I said, we now have 375 cases. I have 196 on hold and I have 179 that I still have to investigate. That's the situation out of a total inventory of about 2,000. That's a rough estimate; I don't have the latest number. That gives you a sense of how important a caseload that is, both in my office and in their office for sure because those have to be treated.
In terms of legal costs, I'm always very proud to say that I think the OIC is a very lean machine, but we did outsource legal costs the first two years of the litigation. So one year was $19,000 and the other year was $12,000. We are lucky that a lot of very high-level lawyers in the private sector will work with our office at a very low cost. Now we have inside counsel. I've increased the number of lawyers in my office and I'm changing the way we're doing business a little. So this year the litigation has cost $628 so far, aside from the salary of a lawyer, but that lawyer works on other cases in the office. That's my cost. I don't know what the CBC costs are.
NDP
The Chair NDP Jean Crowder
Before we start the next round, the clerk will send around to committee members any of the guideline documents the commissioner referenced.
We now start our five-minute round, and we'll start with Monsieur Dusseault.
NDP
Pierre-Luc Dusseault NDP Sherbrooke, QC
Thank you, Madam Chair.
I would first like to welcome Ms. Legault.
I am happy to have you with us once again. Actually, a number of things have happened since you last came to see us. A few weeks ago, I was also at an event you organized that was attended by information commissioners from around the world. I think that one of the documents you submitted talks about some of the subjects discussed at that event.
I would like to go over the information commissioner's power at greater length. I saw that other information commissioners seemed to have a lot more power when it came to ministerial departments and crown corporations.
Do you think the committee should consider broadening the commissioner's mandate to include access to certain departmental records? I saw that this was already the case in a number of countries.
Information Commissioner, Office of the Information Commissioner of Canada
As I said when the Supreme Court of Canada rendered its decision, I think that the act should indeed apply to ministers' offices in terms of departmental administration. There is now a significant amount of proactive disclosure regarding certain departmental spending. I feel that Canadians should be able to obtain documents underlying those proactive disclosures.
Yes, I believe that political institutions should be covered by the act, as long as we're talking about their general administration, and ministerial and departmental functions, and not their political functions.
NDP
Pierre-Luc Dusseault NDP Sherbrooke, QC
I did not take my discussion with the foreign commissioners any further. However, I assume that crown corporations operating in a competitive market, such as the CBC or VIA Rail, are subject to certain exclusions that protect them from private competitors—whoever they may be—and from a disadvantageous position. Do you agree that this is key for crown corporations?
Information Commissioner, Office of the Information Commissioner of Canada
I personally don't feel that exclusions are necessary. I feel that discretionary exemptions suffice.
As I mentioned in last year's special report, once we look into how institutions newly covered by the act are performing, we see that crown corporations make frequent use of their exclusions. You need only compare general statistics regarding the CBC with those regarding the government. Cases where the CBC disclosed no information to requesters under the exclusion account for 20% of all requests, which is very high. By comparison, the same cases represent about 2% to 3% of requests made across government. It seems that a dynamic is emerging where the exclusion leads to a low rate of disclosure to requesters.
In my opinion, that is not an optimal situation. That is why I suggested these changes. Of course, the specific provisions that apply to journalistic sources are completely appropriate. There are no concerns when it comes to that. However, I think that the problem has to do with where exactly those provisions fit in the act.
NDP
Pierre-Luc Dusseault NDP Sherbrooke, QC
As you say, journalistic sources are among the major issues. In fact, we know that some journalists will even go to great lengths to protect those highly confidential sources. I assume that you will take that into account, should the act be amended. You should ensure that critical pieces of information are available, while enabling journalists to do their job properly and be protected by the information commissioner.
Information Commissioner, Office of the Information Commissioner of Canada
Exactly. We will do so, just as we do in the case of national security or police investigations where informants' identity must be protected, for instance. That information is very well protected under the act. Commercial activities are also protected when appropriate.
The exemptions in the act are nevertheless well structured. They work very well. There is a nice balance between disclosure and the necessary protection of certain information. The same has always been the case and will continue being the case for journalistic sources.
NDP
The Chair NDP Jean Crowder
Thank you.
We'll now go to Ms. Davidson.
I understand you're splitting your time with Mr. Carmichael.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Yes. Thank you, Madam Chair.
It's nice to see you again, Commissioners. Welcome back to the committee.
I have a quick question. We've had some discussion over past meetings about the makeup of the requests that have come in for access to information. I note in the 2007-08 year it was business, 88%, and media, 6%. The next year it was business, 43%, and media, 25%. Then in 2009-10 it was business, 43%, and media, 25%.
I don't understand what the definition is of business and media and how that applies to the journalistic protection of 68.1. What does Quebecor fall under? Are they media or business?