Information & Ethics Committee on May 29th, 2013

[The Chair, NDP, Pierre-Luc Dusseault]

So we will add a meeting on Monday, June 3, to which we will invite the additional witnesses. So the study will take five meetings instead of four. That will also change the date by which amendments must be submitted. The new date is Tuesday, June 4, at 9 a.m.

If that is agreeable to everyone, we can now continue with the questions.

The floor now goes to Ms. Davidson.

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

Thank you, Mr. Chair.

Thanks very much, Commissioner and Ms. McCarthy, for being with us today.

I want to go back to the exclusions and exemptions because I find it very confusing. I'd like you to talk to us again about how this distinction is important in the context of the bill. I know you said in your remarks that you were against one of the exclusions, and then you went on to talk a bit about when an exemption is invoked. Could you please talk to us about that?

If you have time at the end, I am interested in what you said about considering how the proposed amendments will apply to the current backlog or current numbers we have. Could you talk a bit more about that, if you have time?

Thank you.

[Suzanne Legault]

The most significant distinction with the exemption we have before us in Bill C-461...and I'll just speak in terms of the specific exemption and the exclusion. That way I think it will be clearer.

The current exemption being proposed is a discretionary exemption. There's a prejudice test, and it's linked to the independence. There is an exercise of discretion that has to be done by the head of the institution.

If there's an access to information request, the institution will have to determine whether the records that have been asked for fall within the category of records...whether they apply to journalistic, creative, or programming activities, those kinds of records. If they are, then they have the discretion to disclose them or not, looking at whether or not it will prejudice their independence. That's essentially the exercise they're going to have to do.

Emily can correct me. She's dealing with these all the time.

If it's an exclusion, what the CBC is currently doing is asking themselves whether the records relate to anything that has to do with programming, creative, or journalistic activities. If they do, then they have to determine whether they are, however, related to general administration.

You can imagine that for a public broadcaster most of its records relate to programming, creative, and journalistic activities. The difficulty with the files in relation to the CBC is that the general administration part is sort of intertwined in the records.

Whether we have an exemption or whether we have an exclusion, that difficulty in terms of deciding what can be disclosed or not will always remain. Bill C-461 will not resolve the difficulty in finding out what the exemption applies to or what the exclusion applies to.

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

Will it confuse the issue more, or will it do anything to the issue?

[Suzanne Legault]

It's different, because what it does is it allows the head of the institution to apply its guidelines and to basically say, “Yes, in this case it is something that applies to our programming activity, or it's a record related to programming; however, in this particular instance disclosure would not prejudice my independence.”

From my perspective, I would think it should generate more disclosure.

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

Then on the issue of the 200 or so backlog, or existing...?

[Suzanne Legault]

That's a matter of transition between a new provision and an old provision, and the fact that we already have cases....

Emily, perhaps you can talk about transition provisions.

[Emily McCarthy, Assistant Commissioner, Complaints Resolution and Compliance, Office of the Information Commissioner of Canada]

It would just clarify the application of the statute. If you have a transitional provision, then it would be clear to all involved which law would be applicable, whether the ongoing cases would be governed by the new provision or whether we would continue to investigate based on the previous provision. But as the commissioner mentioned earlier, that raises a difficulty in the sense that the requester could then make a new request for the same information under the new provision.

So you can see where there would be potentially a difficulty, where we would be required to make a finding under the existing language, as it is right now, but also have a complaint relating to the new provision—in a sense, a use of resources that might not be entirely productive.

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

So your office would think it would be better to have it apply to everything you have on file now?

[Suzanne Legault]

I think so. My understanding of transition legislation or transition law—and you really have to speak to experts on this—is that if we don't provide something specific in the legislation, in the private member's bill, we would be faced with the situation that the assistant commissioner is describing, i.e., I would have a set of complaints where the old law would apply and new complaints where the new law would apply.

My difficulty with that is that it would not be very good for taxpayers to have me, my office staff, spend time to investigate old complaints under old legislation. And if I have a disagreement, and the CBC is not in agreement with my recommendations for disclosure, then it's certainly not a case I would like to take to court, because that would be a waste of taxpayers' money.

I think we need to provide for transition provisions so that this does not occur.

[The Chair, NDP, Pierre-Luc Dusseault]

Ms. Davidson, your time is up.

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

I'm out of time? Okay, thank you.

[The Chair, NDP, Pierre-Luc Dusseault]

We now move to Mr. Andrews, for seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Thank you very much, and welcome back, folks.

The government is going to propose an amendment to Mr. Rathgeber's bill on two fronts. I'd like to get your opinion. They're going to come with an amendment regarding journalistic sources. How should that amendment look? If they want to protect journalistic sources, what kind of amendment could we make to this bill to protect journalistic sources?

[Suzanne Legault]

First, I must say, in my view, journalistic sources will be protected anyway. I think they're protected under the current act, and I think they will be protected under the proposed bill as well. You have to look at the act as a whole. Section 19 of the act protects personal information as well. It's also a provision we use in matters of human sources, for instance in national security matters.

As far as I'm concerned, the fact that it's a discretionary exemption would still protect journalistic sources. The fact that I am allowed to review documents does not mean they will be disclosed. It doesn't address your colleague's point.

I must seriously admit that the idea of having a new amendment that would make an exclusion to a discretionary exemption—and I have not seen it. Having spent several years in litigation to try to assess how an exception to an exclusion applies is a little bit of.... Seriously, operationally, I would rather not see that. I would certainly prefer to see a proposed amendment before that's done, especially since I think it's not necessary to protect journalistic sources.

[Scott Andrews, Liberal, Avalon, NL]

How do you square that with the testimony we heard at the last committee meeting, where every witness said this is their biggest concern?

[Suzanne Legault]

Frankly, I don't see it. There are two issues. The first issue is that I have the right to review documents, which could include journalistic sources. In my view, because of the confidentiality of the provision, it does not mean that journalistic sources are compromised.

The second issue is that there does not exist, at this time, a full-fledged protection of journalistic sources anyway, which goes to the point of your colleague. When people say there's a potential of disclosure, well, there is a potential now that journalistic sources can be disclosed because they can be disclosed by a court under the Wigmore test.

It's not an absolute privilege; it's not an absolute protection. That is the status quo right now.

I'm not going to comment on an amendment I haven't seen, but please consider this: you are going to create another difficult situation if we create another exclusion to an exemption. How that's going to work, I really don't know. I haven't seen any amendments. I really don't know how that would work, in practice.

If it's going to happen, my recommendation would be to have a mandatory exemption, not an exclusion. This would mean it would be mandatory for the CBC to protect journalistic sources. That would still allow me to review the matters.

I'll tell you why I think it's best if I'm allowed to review the matters. We have this all the time in matters of national security, in terms of human sources. You can have a whole document where there are human sources being referred to in the document. Then there are other types of information that may allow you to identify the human source, and then there's other peripheral information that the institution could claim allows the journalistic source to be identified. It's not so simple.

So far, we have not had any case that dealt with journalistic sources. It is not a big issue. Is it worth complicating the act and adding an exclusion to an exemption? My advice is no.

[Scott Andrews, Liberal, Avalon, NL]

I'm going to throw my last three questions into the one.

How will the injury-based exemption being proposed in this bill work, and will it work well? Is it something we should be looking at? I think the injury exemption is something we haven't really dealt with in any piece of legislation, if I'm not mistaken.

My second question is, we often hear on the CBC that one of their competitors is going to get information about them. Can you explain to us how, under its business model as I understand it, if something relates to part of its business, it can't be released anyway because it's competitive?

Can you enlighten us on those three things, please?

[Suzanne Legault]

There are other provisions in the Access to Information Act that protect information, obviously. There is protection for commercially sensitive information, for instance. There is protection for personal information, which a source would be; it would protect his own personal information. It's a mandatory exemption.

In terms of other discretionary injury-based exemptions in the act, there are others. For instance, section 15 deals with national security. It probably deals with some of the most sensitive information we review under the legislation, and that's an exemption that is discretionary and that is subject to an injury test. That has been in existence for 30 years, and that has worked extremely well. As far as I know, there has not been any leak of highly sensitive security information from my office.

What we do in those cases, though—and this is something I'm perfectly prepared to do in our investigations with the CBC—is to go on site to consult on the most sensitive information. We don't take the documents to our office. We basically go in and we look at the documents ourselves, just to assure ourselves that it is actually information that deserves protection.

We could very easily do the same thing with journalistic sources, if the CBC felt more comfortable, in that we would basically go there and not take the documents out, and just satisfy ourselves that the exemption was properly applied.

So no, it's not novel in the act, that kind of exemption. It exists. It has functioned very well. Institutions function very well. In fact, I would say that if you look at the guidelines of the CBC, that's really what they're proposing to do.

Our experience so far with the CBC investigations is that it's essentially what we are seeing in the application of the specific complaints. So the CBC is maximizing disclosure through our investigations right now, applying a similar exemption, even though they're actually covered by an exclusion.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you. Mr. Andrews' time is up.

We move right away to Mr. Mayes for seven minutes.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Thank you, Mr. Chair.

Commissioner, first of all, I want to say that I have all confidence in your judgment when you're looking at these files—the sensitivity of it and understanding some of the implications.

We had the CBC here at our last meeting. They made a statement in their submission that you gave them an A for their openness to access to information. But I've since found out, and I just want you to confirm this, that you gave them an A for timeliness, but you still gave them a D for the access to information, for the scope of the information.

Now, is that correct or not correct?

[Suzanne Legault]

No. The report cards only deal with the timeliness issues.

We do our report cards fairly regularly. That was the last of a three-year cycle. We reviewed CBC twice. The first year we reviewed them, they got an F in terms of timeliness. The last year we reviewed them, which was last year, they did very, very well in terms of timeliness. They have very few complaints related to timeliness.

We work extremely closely with the CBC in trying to resolve the cases. The assistant commissioner can speak to that. We are intensely working with the CBC to resolve these cases, and there has been significant additional disclosure.

There were growing pains, definitely, at the beginning of this legislation, but now...and I have spoken to Monsieur Lacroix; I have his full collaboration. Our offices are working very well on the complaints resolution.

We have not, so far, really had to resolve a case on the basis of section 68.1. We have resolved them with the use of other provisions of the act.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

That's good to hear.

When I talked to the CBC representatives, that's what I said, that actually this has been good for them, because it's made them more aware of how they have to be open, but they also are more sensitive to what you're doing. I think we've made some gains, as you've said, and I think that's very positive.

In your opening statement, you said that we need to look at the national and international models in terms of our guidelines, and that ours might be outdated.

With regard to that, specifically around section 68.1, what do you find in places like the United Kingdom and other countries concerning those types of exemptions—I'm sure they have them—and how do we match up the current bill that we have with the existing section 68.1?

[Suzanne Legault]

When I appeared in 2011 and recommended the discretionary exemption, I did say, if I recall correctly, that I was an outlier internationally. That's why at that time I provided the committee with the international models, because in other jurisdictions like the U.K. and Australia, for instance, which are good comparisons, their national broadcasters are covered by their freedom of information act. However, most of the information is excluded or derogated. They use different terms. It's difficult to compare. They're essentially excluded in their programming and journalistic activities. The difference is that their exclusion or derogation works like our exemption, in the sense that their commissioners are entitled to review the records, including journalistic sources, as far as I can tell.

We did contact the U.K. and Australia following some of the debates in the House of Commons, because I was alerted to this concern as to whether or not this would affect the competitiveness of the public broadcaster if there was a distinction in being covered by the act, its journalistic sources being covered by the act, and other broadcasters. Neither of the two jurisdictions has indicated that this has been an issue. That's the extent of what I know.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Is there anything in this bill under proposed section 18.2 that you can see that could be amended, any suggestions you would have that would make your life simpler?