Information & Ethics Committee on June 3rd, 2013

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

But governments exchange documentation and information with each other all the time. So if a person is applying under the Access to Information Act to receive government information, they must apply to the government institution that holds that information, not one that has it under escrow, or one that has borrowed it for the purpose of an application and will send it back thereafter.

So if an individual wants to apply for access to a document held by CBC, he will have to apply to CBC. If the CRTC has temporary control of a document that CBC provided them, they will have to turn those documents back to CBC and have CBC determine whether or not they can be released pursuant to the rules specific to CBC, which is the prejudice test I've created.

[Chris Warkentin, Conservative, Peace River, AB]

But the vice-president of legal services for the corporation seems to disagree with your interpretation of your legislation and your amendment.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

She's entitled to her opinion.

[Chris Warkentin, Conservative, Peace River, AB]

So you don't see it that way. You believe that if the information is in the CRTC's hands, they will not be obliged to hand over that information, as they currently are?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

You'd have to ask that specific question of the Information Commissioner, but it's my understanding that if a document is under the custody of one agency and it's being shared with a second agency, the agency that has primary care and control of that document is the one to which the access application must be made.

[Chris Warkentin, Conservative, Peace River, AB]

They're saying at the CBC that they turn over these documents as part of their licensing conditions, so they're very concerned about this information being passed on.

My constituents obviously want transparency, but they also want assurances about free press. I think you and I would share that perspective.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

As the Information Commissioner said quite unequivocally last week with respect to journalistic source privilege, the concerns are completely unfounded. The name of a confidential source is personal information under the Privacy Act and can't be disclosed now, and couldn't be disclosed if my bill passed unamended.

If that's what the concern is, I believe it to be completely unfounded. If the concern is with respect to competitive or programming activity, I think it's a little unfair for me to respond to the three-page letter after just having received it.

[Chris Warkentin, Conservative, Peace River, AB]

I appreciate that.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

But I maintain the position that access applications ought to be made to the agency or department that has primary custody of the documents.

[Chris Warkentin, Conservative, Peace River, AB]

I appreciate the fact that you've just seen this letter, just as I have. It is a concern of mine, and something that my attention was drawn to.

Clearly you've outlined the amendment that you want brought forward, in addition to the other amendments. Obviously there have been a number of amendments proposed, including from the Taxpayers Federation, who believe that an amendment is a necessity to ensure that we protect journalistic integrity.

I guess we'll have to proceed with the information that we have before us.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Well, Mr. Chair, by the same logic, a private broadcaster also has to submit these types of documents to the CRTC as part of its regulatory process. To take this argument to its natural conclusion, an individual could get confidential documents from a private broadcaster simply by applying to the CRTC to get them.

I've never heard of that being a problem. The private broadcasters would be subject to the same controls, or lack of controls, with respect to their regulatory obligations.

I'm not sure that I understand the concern. I think I understand the question, but I don't believe that it's a real problem.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

Mr. Warkentin's time is up.

It is now over to Mr. Andrews for seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Thank you very much, Mr. Chair.

Welcome back, Brent.

My first question is regarding the injury-based test. I guess you heard the commissioner's testimony on that. It's something that is frequently used, a common practice for determining release or non-release of information.

What's are your thoughts on the injury-based test?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Actually, I do not recall the commissioner saying that it's a commonly used test or benchmark for disclosure of documents. Generally under access to information legislation, applicants have the right to see the documents whether they're injurious to the government department or not.

By putting this test with respect to documents under the current control of the Canadian Broadcasting Corporation, as she suggested before this committee during your detailed study of section 68.1 of the Access to Information Act, it's providing an extra level of protection to the Canadian Broadcasting Corporation that isn't enjoyed by most departments or agencies of the Government of Canada. It is a deliberate attempt to be mindful of the fact that although the Canadian Broadcasting Corporation is a crown corporation and receives funds from the Treasury Board, it is a journalistic operation and there has to be a healthy degree of separation and independence from the government that funds it.

The prejudice test is built in specifically to protect it from having to disclose documents that would be injurious to their independence in regard to their journalistic programming. As I said in my opening comments, if the members were to have a greater comfort level, they may want to add something to independence, such as freedom of expression.

But the prejudice test is an extra level of protection that I think should be enjoyed by a public broadcaster and that isn't commonly enjoyed by government departments.

[Scott Andrews, Liberal, Avalon, NL]

But I think the departments you referred to with regard to the injury-based test were CSIS and National Defence.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

There are some, but it's not common.

[Scott Andrews, Liberal, Avalon, NL]

So would your injury-based test be based on the same principles as those in CSIS and National Defence?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Well, yes and no. The test is to demonstrate harm, and the onus is on the group stating that the documents shouldn't be released. With respect to national security agencies, the test is one of national security and whether that would be prejudiced.

This test will be fine-tuned for the needs of a public broadcaster, and will specifically be about whether their independence will be compromised with respect to their journalistic, competitive, or programming activities. It will be specific to what they do; they're not involved in national security like CSIS is.

[Scott Andrews, Liberal, Avalon, NL]

The commissioner also said, when asked about the protection of journalistic sources, that she doesn't believe that any amendment to your bill is necessary, or that your bill would not protect journalistic sources. What are your thoughts on her comments?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Well, I absolutely agree with them. She has many arguments as to why an exclusion for journalistic source documents shouldn't be entertained by this committee.

First of all, it's her position—and I agree with it—that all decisions of information officers should be reviewed independently of government. She is independent of government. She's an officer of Parliament. She has maintained that journalistic source privilege is not absolute. The courts have said so. Somebody has to apply their mind to Professor Wigmore's four-pronged test to determine whether or not journalistic source privilege applies.

I think what resolves the issue clearly is the fact that the name of an individual is private information under the Privacy Act. If a document were released that contained the name of confidential journalistic sources, it would have to be redacted, because the name of an individual is private and protected by the Privacy Act. I believe all of this concern about journalistic source privilege is really a bit of a non-starter.

Plus, she's done 1,200 cases with the CBC, and not a single one of them has dealt with journalistic source privilege. That's not to say that one might not arise, but we seem to be using an inordinate amount of time dealing with this one problem that the Information Commissioner of Canada doesn't even think is an issue.

[Scott Andrews, Liberal, Avalon, NL]

With regard to disclosure of salaries, your bill covers the Privy Council Office?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

My bill doesn't cover the Privy Council Office, but the Access to Information Act covers the Privy Council Office, so yes.

[Scott Andrews, Liberal, Avalon, NL]

Okay.

What about the Prime Minister's Office? Your bill doesn't cover the Prime Minister's Office, but it covers the Access to Information Act. But the Prime Minister's Office is exempt from the Access to Information Act.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Yes, that's correct. My bill makes amendments to the Privacy Act and it makes amendments to the Access to Information Act, but the Prime Minister's Office and Parliament are not subject to the Access to Information Act, so these changes, prima facie, would not apply to the Prime Minister's Office.

[Scott Andrews, Liberal, Avalon, NL]

When we talked about bonuses of employees, I believe that when you were giving some testimony last time you were here, you talked about a base salary for somebody above DM-1 and said that their salary comprises not only their salary but also their bonuses. Is it ironclad in your bill that those two numbers would be disclosed as one number?