Thank you, Madam Chair.
My remarks this morning will be brief, if a little bit out of breath.
I will address three issues. First, I will review the origin and the current status of the ongoing court case involving the CBC and the Information Commissioner. Second, I will review the corporation's performance under the Access to Information Act. Third, I will review the situation in other jurisdictions as it relates to their public broadcasters and suggest possible changes to our own act, if the committee should choose to review the current legislative text as part of its deliberations.
First, let me introduce Ms. McCarthy, our new general counsel. She is currently acting as Assistant Commissioner, Complaints Resolution and Compliance.
The origin of the dispute between my office and the corporation dates back to 2009. My office was then investigating complaints regarding CBC's refusal to disclose records based on section 68.1 of the act. Section 68.1 provides an exclusion from the act for information relating to CBC's creative programming or journalistic activities. However, there is an exception to this exclusion for information relating to the general administration of the corporation.
In the course of our investigations we asked the CBC to provide us with information that had been withheld, so that we could assess whether its decision on disclosure was justified or whether the withheld information fell within the exception to the exclusion. The CBC refused to provide the relevant information, so my office issued a production order to the CBC in relation to certain complaints. That same day, the corporation initiated a judicial review application under section 18 of the Federal Courts Act, challenging my office's authority to obtain records they claimed were excluded under section 68.1.
The Federal Court dismissed the CBC's application for judicial review, and the CBC appealed that decision. The Federal Court of Appeal heard the appeal on October 18, 2011, and has taken the matter under reserve, which limits my ability to comment much further on the case.
Given the ongoing court process, my office has, up to now, suspended the investigation of 196 refusal complaints in which CBC has relied on section 68.1.
Some of these complaints date back to 2007. Given the age of some of the complaints, I raised a concern with this committee, in March 2009, that the failure to retrieve responsive records could have a negative impact on Canadians' right to access information.
I can report that since our last appearance on this matter, the CBC assured my office that it has started retrieving the records responsive to the complaints that have been put on hold, but it is still not confirmed that the CBC has identified and retrieved the responsive records in all cases.
Madam Chair, this morning, I submitted to the committee a brief statistical overview of the CBC's performance since it became subject to the act.
In sum, I can safely say that the CBC's performance has improved since it became subject to the act in 2007, but I still have serious concerns. Let me explain.
Since it became subject to the act, the CBC has received about 1,400 requests for information. Of those, close to 1,100 have resulted in complaints to my office. However, as you can see from the document I handed out this morning, the number of complaints relative to the number of requests has been declining steadily year over year. Last year, a special report highlighted that the CBC took an average of 158 days to process access to information requests and had a deemed refusal rate of close to 60%.
Although we have not verified this information yet, the CBC is reporting significant improvements on these numbers in its most recent annual report to Parliament, claiming 57 days on average to respond to requests, and a deemed refusal rate of 22% in the last fiscal year. If one goes on the CBC's website, one will see that they also claim an improved performance for this fiscal year, which is not completed.
Notwithstanding this progress in performance, I still have serious concerns. In addition to the cases currently on hold pending the outcome of the litigation, my office still has around 180 ongoing investigations with the CBC. It is my observation at this time that the current level of resourcing in CBC's access to information office is not sufficient to address the investigation of these complaints with my staff. If there is no change to the current resource levels, the situation will likely be aggravated once the investigations into the 196 on-hold complaints begin.
I'm also very concerned with the guidelines for the interpretation of section 68.1 recently published by the CBC. The guidelines state that an access to information request may be refused on its face by the person with the delegated authority if this person concludes that the requested information is excluded from the application of the act by virtue of section 68.1 on the sole basis of the wording of the actual access to information request. In my view, individuals with delegated authority to make decisions as to whether or not information falls within the exclusion found in section 68.1 must review the responsive records to make a valid decision under the act, including appropriate severances, as required under the act, to maximize disclosure.
It is therefore encouraging that the most recent statistics indicate that the CBC's performance is gradually improving. However, if the reason for improved response time to requests is that the CBC is not receiving and processing records in accordance with the act, as the recently published guidelines suggest, then the decrease in response time may not reflect an improvement in performance.
That said, my office has not yet had the opportunity to discuss the guidelines with CBC officials. I plan to do so shortly. Actually, it was while preparing my presentation for the committee that I learned about those guidelines, which are obviously a major source of concern for me. We will also follow up on the performance of the CBC in the next fiscal year, as part of our report cards process.
I've also tabled with the committee a review of the freedom of information laws in Australia, Ireland, and the United Kingdom as they relate to the coverage of public broadcasters. I've also included in that document suggestions for change, should the committee be interested in looking at our own act.
In a nutshell, the situation in the jurisdictions reviewed is that public broadcasters are subject to the freedom of information legislation; programming and journalistic records are covered by way of exclusions to their respective legislation; the oversight bodies have the power to review the records to determine the application of the exclusion; and they can order disclosure. In the U.K., the ability of the information commissioner to actually review the records was pursuant to a court decision as well.
I've also included possible changes to our own act, because as Information Commissioner--and as previous information commissioners have also advocated--I believe that exceptions to the application of the act should be limited and specific, and such exceptions should be injury-based. The wording of exceptions should be clear and objective, which is consistent with the existing provisions of the act.
Injury-based exemptions require that the public institution establish a reasonable expectation of harm, and support that claim with specific evidence. A discretionary exemption ensures that the public interest in obtaining access to the requested information will be considered by the head of a public institution, even where the information otherwise qualifies for exemption.
Madam Chair, I believe these suggested changes would be consistent with the purposes underlying the Access to Information Act and would protect the CBC's journalistic and programming independence.
I thank you for the privilege of appearing before the committee. I would be pleased to respond to your questions.