Thank you, Mr. Chair.
Thank you for inviting me to speak to you today in relation to your study of Bill C-461.
This bill proposes the repeal of section 68.1 of the Access to Information Act, which excludes information relating to the Canadian Broadcasting Corporation's journalistic, creative, or programming activities, subject to an exception for information relating to its general administration.
The bill would replace that exclusion with a new exemption, which would allow CBC to withhold records that could reasonably be expected to prejudice the journalistic, creative, or programming independence of the CBC.
At the outset, I would like to describe briefly the general structure of the act, the limits to the right of access and the powers given to my office.
To that end, Mr. Chair, I have circulated a document to committee members which sets out in a little more detail the various exemptions and exclusions, and explains the difference between the two. The document also explains the general provisions of the legislation as applied to my powers. It provides committee members with more information.
The legislation creates a right to access information under the control of government institutions, subject to specific and limited exceptions. The act limits access by way of exemptions and exclusions.
Exclusions provide that the act does not apply to certain records or information. The act also includes various exemptions that permit or require institutions to withhold a range of records and information.
The act gives the commissioner broad investigatory powers, including access to all the documents under the control of the federal institution to which the act applies. The commissioner has broad powers to require the production of these records.
Thus, when an exemption is invoked by an institution, the commissioner has access to the documents in their entirety. However, where an institution invokes an exclusion, access to the underlying information or records depends on the nature of the exclusion relied on by the institution.
The commissioner's access to records and information, which had been identified by the CBC as falling within the exclusion found in section 68.1, was at issue before the Federal Court of Appeal at the time of my appearance in October 2011. In November 2011, the Federal Court of Appeal rendered its decision.
The question of the extent of the commissioner's powers to examine documents for which an exclusion is invoked was raised in the investigations of the many complaints about the CBC's use of section 68.1 of the act.
As the result of the CBC's challenge to my power to compel the production of documents mentioned in that section, the Court of Appeal confirmed that the commissioner is allowed access to documents covered by the exclusion in order to determine whether the exception fell within the exception for information relating to the administration of the CBC.
With respect to information that would reveal a journalistic source, the Federal Court of Appeal's explanation was:
The identity of journalistic sources cannot clash with the exception relating to general administration, regardless of the scope attributed to this exception. In these circumstances, the only conclusion possible if one gives effect to the Federal Court judge’s reasoning is that the exclusion for journalistic sources, like the exclusions provided in sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record—or the part thereof—revealing this type of information would be exempt from the Commissioner’s power of examination.
In its decision, the Court of Appeal resolved the scope of the commissioner's powers to compel the production of the records to which CBC has applied section 68.1. What the decision does not resolve is the scope of the exception to the exclusion and the meaning of the terms used in section 68.1, such as “journalistic, creative or programming activities”. So this does not preclude subsequent litigation on the scope of the exception or the exclusion.
Before I discuss the specific modifications proposed by Bill C-461, it is important to emphasize that the challenges related to access to information are complex. They demand thoughtful, unified action, and are not easily amenable to a piecemeal solution.
Like my predecessors, I have more than once observed that the act requires modernization to bring it in line with more progressive and international models. While it is true that the act was considered state-of-the-art legislation when it received royal assent in 1982, it is now significantly outdated. While acknowledging the need to amend the law, I maintain that it should not be done in a disjointed way, since this leads to issue-specific amendments that erode the act's status as a law of general application.
At the very least, the structure of the act as a whole must be considered when amendments are proposed. We must examine not only the specific interests to be protected by changes or additions to the law, but also the spirit of the law, the way in which it is structured, and its general framework. The chosen approach must, in my view, preserve the law's character as one of general application.
The amendments proposed in Bill C-461 in relation to the CBC reflect what I suggested when I appeared before this committee in October 2011.
Since the committee has been having hearings, I have been following the comments of the stakeholders very closely, as well as the comments of parliamentarians in the House of Commons, and I'll be happy to discuss some of the issues that have been raised by various parties.
At this time, Bill C-461 proposes the repeal of section 68.1 and the insertion of a discretionary, injury-based exemption that would permit the CBC to withhold information that “could reasonably be expected to prejudice the corporation's journalistic, creative, or programming independence”. A discretionary, injury-based exemption will ensure requesters' rights to an independent review process in all matters.
To be clear, any information or records obtained by my office are reviewed solely for investigative purposes. Indeed, the access act's confidentiality requirements are very strict and do not allow the disclosure of any information during the performance of my duties.
In concluding, I ask the committee to consider how these proposed amendments to the Act will apply to the more than 200 complaints currently under investigation. Will the new provisions be applicable to ongoing files, that is, requests and complaints to CBC, or only to new requests? The bill in its current form makes no mention of transitional measures for dealing with existing files. So I invite the committee to consider that matter as it deliberates.
In my view, it would be better that the new provisions be applicable to existing complaints and requests since a requester may simply make a new request, thereby benefiting from the application of the new provisions. But, for that to be the effect, a specific provision is needed, in my view.
With that, Mr. Chair, I would be pleased to answer your questions.
