Information & Ethics Committee on Nov. 24th, 2011

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

But in your opinion, if it goes that route, it's really going to undermine your competitive position as a crown corporation. And it could actually be undermining the interests of the state, because you are publicly financed, and anything that undermines your ability to compete and to earn money for the taxpayer would be undermining the financial position of the government, in a sense.

[Hubert T. Lacroix]

Absolutely.

[The Chair, NDP, Jean Crowder]

Time is up, Mr. Scarpaleggia. Thank you very much.

We'll now go to Mrs. Davidson for seven minutes.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thanks very much, Madam Chair.

Thank you very much to the witnesses for being here this morning.

Certainly I appreciate the fact that you've given us this big binder full of information. Unlike my colleague across the way, I haven't had the opportunity to go through it. I look forward to doing that, and I know there will probably be some information in here that I would wish I could have had beforehand, to ask you questions on, but that's not the case.

I'll go ahead with questions on some of the information we've had supplied to this committee before. The one thing I want to say up front is that I don't think there's anybody sitting in this room who's questioning the point that we need to have section 68.1 to protect the integrity of some of your data. I don't think that's in question at all. Certainly if it's information that needs to be protected, then that's fine. I think what we're asking is how much of it is being protected and who is doing that protection? Are there requests being made that are having section 68.1 applied to them without it being further examined?

When we had the commissioner before us, she stated she's concerned with the guidelines for the interpretation of section 68.1, where an access to information request might be refused on the face of it by the person with the delegated authority and that decision could be made on the sole basis of the wording of the request. I think that's what's at the basis of this. We need to know.

Could you clarify the guidelines for us? Are the decisions really made on the basis of the wording of the request? I know that some of that information is probably in the information you've given us, but I'd appreciate it if you could answer that for me this morning, please.

[Maryse Bertrand]

Yes. The commissioner's concerns with respect to the guidelines had to do with the fact that some of the requests on their face clearly fall within programming. For example, if somebody wants to know all of the materials that were used for the purposes of making the show Being Erica, we don't really have to see the documents to know that all of that is going to fall under programming.

In an attempt to try to save the money to the requester that we have to charge in order to retrieve that information, our initial policy is that when things are absolutely clearly going to be covered by section 68.1, we will not retrieve the documents. The commissioner expressed concerns with that in front of this committee, and we immediately have changed our guidelines. Our guidelines, as you have them in the binder and as they are currently posted on our website, provide that in all circumstances now, we will retrieve the documents, even if on their face they clearly will not be provided to the requester based on section 68.1

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Who at CBC makes the decision as to what's captured by section 68.1 and what isn't? There must be some extreme complexities to some of the requests, and you've just alluded to some of that. So because of that complexity, what action has to be taken to ensure that there's a fair and quick reply?

[Maryse Bertrand]

That's correct, it is a fairly complex analysis at times.

The person who is charged with that analysis in CBC/Radio-Canada is assistant general counsel. She's a lawyer in my legal department. She is the sole authority in terms of determining whether something falls within section 68.1 or not, and of course she applies the case law and our guidelines to that determination.

To complete the answer in terms of the guideline that Mr. Del Mastro didn't let me finish, our guidelines actually provide that we don't use the case law to the fullest extent. We actually try to release more information than the case law would allow us to redact.

[Hubert T. Lacroix]

You actually have in your binder an opinion from Pierre Trudel, who is an independent professor of law, who says that simply based on the reading of the act and our guidelines, we actually give more information than is requested.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Does it make a difference who is making the request for the information? Does that play a part in discounting the information request, depending on who makes it, and if it could be important to one requester or not make a difference—

[Hubert T. Lacroix]

No, not at all.

[Maryse Bertrand]

We don't know who the requesters are.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Okay.

We had comments made by Ian Morrison when he appeared before this committee. I'm going to quote what he said:

I think they really fear accountability. The expenditure of money on things like entertainment and travel, there should be the same kind of transparency that exists for a department of the Government of Canada.

I'd like to hear what your response is to that statement. I know you have a section in here correcting the record, so maybe some of that is already in there, but could you address that for us this morning, please?

[Hubert T. Lacroix]

Frankly, with respect to the information we disclose on travel and meals, we give you the actual receipts. We give you the number. We give you the information on an aggregated value. You see which airplane, which airline company. You see down to the dollar. It's available and it's broken up by quarter. So I think that the accountability there is completely transparent and available to all. If it wasn't, Quebecor wouldn't be putting up the headlines that it is right now with respect to expenses.

Some of the concerns Mr. Morrison had when he showed up in this committee were surprising to us. If you go to page 4 of the “Correcting the Record” piece, under tab number 2, you'll see our comments on that. If, for example, you want to have information on correspondence that concerns Madam Crowder, we will not give you that information unless you're Madam Crowder asking about the information that we have between us. Mr. Morrison seemingly forgot that piece when he commented on some of the information not provided to him or his organization.

[The Chair, NDP, Jean Crowder]

You have nine seconds.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Okay. Thank you.

[The Chair, NDP, Jean Crowder]

We're now into the five-minute round. Again, a reminder: that includes questions and answers.

Monsieur Boulerice, for five minutes.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you very much, Madam Chair.

Ms. Bertrand et Mr. Lacroix, thank you very much for being with us this morning. It is greatly appreciated.

As you are a public broadcaster, the majority of your funding comes out of the pockets of taxpayers—not all of it, as is often implied, but a lion's share. The private broadcasters also receive a share of public funding in some form or another. However, the fact is you are the public broadcaster. For parliamentarians, for taxpayers and for the people, you have a higher level of accountability than the average private business in this country.

However, it is important to understand the environment in which we find ourselves. Your mission, your conditions of licence and your general mandate are also quite different from those of the private broadcasters. Could you, in one minute, tell us what your specific mandates are? What is the special nature of the CBC? What are the conditions and requirements imposed upon you that result in your mission and mandate being different from those of the others?

[Hubert T. Lacroix]

Thank you, Mr. Boulerice.

One of the conditions tied to our being the public broadcaster is the responsibility of 65% of our budget coming from public funds, that is to say the government contribution that we receive. The Broadcasting Act imposes a rather complex mission on us which can be summed up in three verbs: inform, enlighten and entertain Canadians. These three verbs are at the very heart of what we do every day.

In 2010, for our five-year strategic plan entitled “2015: Everyone, Every Way.”, we updated those three words. We stated them in the new mission that is at the heart of the plan, as I was saying. We stated that we want to be the undisputed leader in the expression of Canadian culture and the enrichment of democracy in Canada through information that is fair and reasonable, that presents a diversity of voices.

We do things in certain parts of the country, for example in the north or in the regions, that none of the private broadcasters are capable of doing. They are not in a position to do so because their economic model depends on American programming, for anglophone broadcasters, or programming that is very different from ours, if you are talking about TVA.

Canadian programming during prime time is something that no one else offers in English Canada. We have greater presence in the regions, coverage in aboriginal languages, a presence in certain niche sectors or sectors of activity like no other broadcaster has, given that they do not have an economic model that would justify such an investment.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you.

I want to come back to the decision handed down by the Federal Court of Appeal yesterday. On this side of the table, we accept and support the principles of section 68.1 of the Access to Information Act, under which there must be an exclusion for certain subjects. In fact, you are not obliged to make all your information public, particularly when it concerns journalistic work and strategic competitive information that could be of use to your competitors.

However, we do not support your being the party to assess the relevancy of your decision to exclude certain documents. We feel that there should be a third party who decides whether or not you are right in saying that a given document should not be broadcast and made public.

You gave a partial answer to my colleague Mr. Angus earlier on, but would you accept the principle of being assessed by a third party? Would you accept the principle according to which the Information Commissioner would be the person to decide whether you are right or not?

[Hubert T. Lacroix]

Under the act, the Information Commissioner is clearly responsible for examining the information submitted to her. As you know, section 68.1 of the Access to Information Act determines if she is to consider the information as an exclusion under the act, as we would.

Moreover, the Federal Court of Appeal brought down a decision yesterday, which we have read. In my opening remarks, I told you that the Federal Court of Appeal dealt with one of the most important points for us: journalistic sources. The court protected them completely from review by the commissioner. We are very happy with that aspect of the decision.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

According to the court, journalistic work must be protected. Ms. Davidson said the same thing; we say the same thing; you say the same thing. When Mr. Péladeau appeared here, he said that he had no intention of submitting any requests on journalistic work. Since I have never seen such consensus among all of these people, I wonder where the problem is.

[Hubert T. Lacroix]

On journalistic sources and material, I hope there isn't one.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Lacroix and Mr. Boulerice.

Now we have Mr. Calkins for five minutes.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Madam Chair.

Thank you, Mr. Lacroix, for being here today.

This committee has been seized with this question now for quite some time. My line of questioning is going to pursue the recent court ruling.

I appreciate the fact that you've given us a binder full of information to look at. It's quite nice and well organized--much better and probably more costly than the stuff we get from other witnesses who come here. But I'm just saying that tongue-in-cheek. I appreciate the information.

The question I have for you pertains to what the rationale could have possibly been. The Information Commissioner was before this committee and testified quite clearly that her agency has been totally professional when dealing with access to information requests. It has maintained and respected the integrity and confidentiality of information in certain organizations she has jurisdiction to go to. Yet the CBC has maintained all along that somebody other than the Information Commissioner should be making the determinations.

Your position was clearly not upheld in the decision yesterday. We can talk around it however you want, but the reality is that the information that came down yesterday clearly states that the Information Commissioner does have the ability to do that.

What was the rationale for pursuing the line of challenging this in the court? Clearly the legislation lays it out. Section 68.1 has been around for a long time. It has been well tested in the courts. We've heard other people speculate on what the rationale of the CBC might have been when it comes to this.

What has the Information Commissioner's office done to give you such grave concern that you would not allow that office the opportunity to examine the requests and information to determine what could be released in the public domain? What is in the nature of that relationship that's causing so much concern?

[Maryse Bertrand]

One thing that has been made clear by the Federal Court of Appeal decision is that the law was anything but clear. We were trying to get clarification, and that's what we've received. The judgment actually states that in a number of instances.

The philosophical objection we had to the commissioner looking at the documents had nothing to do with our programming activities; it had to do with our journalistic activities. But the law lumped them together. So if we wanted to have a debate with the commissioner about the journalistic piece, we unfortunately had to have a debate over everything.

Philosophically, we certainly don't have any objection to the commissioner looking at our programming material. As we said in the statement that was released yesterday, and as Mr. Lacroix said in his remarks this morning, our main concern was the journalistic sources and material.