moved that Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), be read the second time and referred to a committee.
Mr. Speaker, it is indeed a pleasure to rise and speak to second reading of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act for public disclosure. The bill's short title is the CBC and public service disclosure and transparency act.
The bill has two purposes. The first is to correct a recognized deficiency in the current section 68.1 of the Access to Information Act, which currently reads:
This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.
Not surprisingly, the CBC took the position that it had an absolute exclusion with respect to its journalistic, creative and programming activities, even so far as the Information Commissioner and her investigative powers were concerned.
The Information Commissioner disagreed, stating that the access act allows her to examine any documents under request to determine if the exception applies.
However, as the CBC denied her certain documents, the Federal Court was called upon to make a determination. Both the Federal Court and the Federal Court of Appeal sided with the Information Commissioner. The appellate court referred to section 68.1 as, “not a model of clarity”, because it created an exclusion and then an exception to that exclusion, which, in its words, creates “a recipe for controversy”.
Meanwhile, the House of Commons Standing Committee on Access, Privacy and Ethics held a study on section 68.1 and recommended that it be amended to avoid any such future controversies. Therefore, Bill C-461 attempts to provide clarity to the issue of the CBC's access and disclosure obligations by replacing the aforementioned blanket exclusion with a discretionary exemption. It further adds an injury or prejudice test, which must be satisfied in order for the exemption to apply, and reaffirms the Information Commissioner's absolute right to examine the documents in order to adjudicate disputes.
Accordingly, the bill proposes that section 68.1 of the access act be replaced with the following, 18.2, which states:
The head of the Canadian Broadcasting Corporation may refuse to disclose any record requested under this Act if the disclos2ould reasonably be expected to prejudice the Corporation’s journalistic, creative or programming independence.
The word “independence” was deliberately chosen and replaces the current word “activities”, first because it is narrower, but more to the point, because it is the independence of the public broadcaster that must be protected and therefore exempted from access requests, not all documents merely relating to its activities.
Some will no doubt argue that the bill is an attack on the CBC. That is not so. I am a fan of much of what the CBC does. It is Tuesday night, and I rarely miss The Rick Mercer Report or This Hour Has 22 Minutes. I never miss Hockey Night in Canada, at least not when the Oilers are playing. Power & Politics and radio's The House are often on my TV and radio respectively.
This legislation is not about the CBC so much as it is about transparency and accountability. Section 68.1 of the Access to Information Act was flawed. The Federal Court of Appeal said so. It was flawed, misunderstood and litigated. This legislation attempts to remedy these defects.
Some may suggest that the bill fails to properly recognize the unique position a public broadcaster is in. That is not so. I clearly appreciate and respect that a public broadcaster, especially as a journalistic entity, must enjoy a degree of independence from government.
However, and this is important, the Information Commissioner is not part of government. The Information Commissioner is an officer of Parliament. Similar to our collective role in this chamber, the Information Commissioner plays an important role in holding the government to account.
Moreover, the prejudice test, which is established under proposed section 18.2, recognizes this unique relationship between a public broadcaster, Parliament and government by providing a discretionary exemption when it is established that disclosure will result in prejudice to the CBC's independence. In any situation where disclosure would result in prejudice to the CBC, disclosure would be inappropriate. I submit that the prejudice test is a built-in protection not enjoyed by most government institutions, and this extra protection reflects an understanding of CBC's unique position as a public broadcaster.
Some may, and I expect will, argue that journalistic source protection is so sacrosanct that an absolute exclusion must be maintained. Not so. I agree that confidential journalistic sources must be protected, but I dispute that an exclusion is either appropriate or practicable.
First, the Information Commissioner has unlimited power under section 36(1) of the Access to Information Act, to compel production of “such documents and things as the [Information] Commissioner deems requisite to the full investigation and consideration of the complaint”. I am simply skeptical that an exclusion can be drafted that can coexist with the Information Commissioner's unfettered powers to compel documentation production under section 36.
Moreover, journalistic source privilege is not absolute. The Supreme Court of Canada has said so as recently as 2010 in R. v. National Post. It is not a class privilege; it is fact specific and therefore must be examined on a case by case basis. Who is to determine if the four-pronged test developed by esteemed Professor Wigmore is satisfied, if the CBC is granted an absolute exclusion? The obvious answer is “nobody”.
Is CBC to be made both judge and party in access to information requests? Certainly not. Disputes must be arbitrated by an independent watchdog and the federal court has said, “disclosing records to the Commissioner does not amount to revealing them”.
This bill would contain parallel amendments to the Privacy Act to import the prejudice tests when individuals request documents about themselves pursuant to Canada's privacy statute.
However, the CBC and public service disclosure and transparency act would make a more substantive alteration to the Privacy Act. It would move the words “range of” before the word “salary” in the definition of exempt personal information for the highest wage earners in the federal public service. Currently, under Canada's privacy laws, only the range of salary can be disclosed pursuant to access requests, which I submit is adequate for most income levels. However, at the highest income levels, the increments become increasingly large as to become meaningless. For example, I have been advised that the current CEO of the CBC earns in the range of $363,800 to $428,000. According to my math, that range of $64,200 is larger than many taxpayers' complete salaries and arguably therefore is not meaningful disclosure.
Accordingly, if Bill C-461 is adopted, the specific salaries and responsibilities of upper management, which this bill would define as “DM 1 and higher”, would be subject to access to information requests. This is important. This change would apply to the entire federal public service. CBC would in no way be singled out. Moreover, reimbursed expenses to all federal employees would also become subject to access requests.
I have consulted widely during the drafting phase of this proposed legislation. I believe, and I believe Canadians believe, that they are entitled to meaningful access to how the Government of Canada spends dollars and how the government operates generally. However, Canadians, including federal employees, are also entitled to a reasonable expectation of privacy. Balancing these competing objectives is indeed a challenge and precarious.
However, it is submitted that an injury base test achieves that balance at least as well as that balance can be achieved regarding CBC's disclosure obligations, as it requires a public interest analysis. The question becomes this. Is the public interest in disclosure greater than any consequential harm? Limiting specific salary disclosures to upper management recognizes the privacy rights of the rank and file public servants.
Taxpayers rightfully are entitled to know how their tax dollars are being spent. In that regard, many provinces have established the so-called sunshine lists, which are publicly disclosed lists shining the sun on salaries, perks and benefits paid to government executives, directors and managers. Members may know that Ontario led the way with respect to such financial disclosure. The Ontario government introduced legislation in 1996 mandating the publication of names and salaries of all of its employees and officers who earn more than $100,000 per year.
The purpose of the Ontario law is to provide a more open and accountable system of government. Disclosure allows taxpayers to compare the performance of an organization to the compensation given to its senior people running it. It allows taxpayers to know how their tax dollars are spent.
British Columbia, Manitoba and Nova Scotia have all copied aspects of the Ontario legislation, with reporting requirements varying and going as low as employees earning $50,000 in the case of Manitoba.
My bill does not call for a website, but by mandating or at least allowing disclosure pursuant to access requests, the public will serve as a critical check on government expenditures and an effective deterrent to any government official tempted to treat taxpayers disrespectfully.
This approach, I would submit, is consistent with the purpose of the access legislation generally, as enumerated in the act, that there is a right of access generally to records under the control of a government institution, and that necessary exceptions should be limited and should be specific, and that decisions on the disclosure of the government information should be reviewed independently of government.
As an officer of Parliament, the Information Commissioner is independent of government and therefore in the best position to resolve the inevitable disputes regarding access to government information.
Canada has had access to information legislation in force since 1983. Canada was once a leader in providing access to government information and documents, but sadly, according to academics and according to the Information Commissioner, we are becoming laggards. Internationally, Canada is currently ranked 55th out of 93 countries in terms of our access and our openness.
Moreover, the Centre for Law and Democracy says the federal government is falling behind the provinces and ranking behind those provinces in terms of openness and transparency.
As we have seen, Ontario is arguably leading the way with the most comprehensive sunshine list. British Columbia, Saskatchewan, Manitoba and Nova Scotia are all following suit and have implemented some variation of salary disclosure.
Sadly, and this should be of concern to this chamber, the federal jurisdiction is falling behind. Since its inception 30 years ago, there has been only marginal expansion of Canada's access law. In December 2003, the then-prime minister announced a new policy on the mandating of publication of travel and hospitality expenses for selected government officials. Then in March 2004, the then-government announced a new policy on the mandated publication, on a website, of contracts over $10,000. In my view, sadly, very little has happened since then.
Accordingly, the Information Commissioner—and I heard her on CBC Radio; I was listening to her on Sunday morning—observes a lack of commitment to openness and transparency at the federal level. Bill C-461, the CBC and public service disclosure and transparency act, is an initiative by Parliament to remedy this trend. The spirit of the act is based upon the principle of disclosure. Non-disclosure must be the exception. Bill C-461 clearly promotes this principle.
The CBC and public service disclosure and transparency act promotes open and transparent government and its role in holding government to account. Exclusion to government information prevents Canadians from holding their government to account. I believe, and I hope all members believe, that holding government to account is fundamental to democracy.
Although freedom to know is not a charter-protected right, freedom to know is inextricably linked to freedom of thought and expression and freedom of the press. Knowledge is power, and holding the government to account demands that knowledge and information be shared. Holding to account leads to the establishment of trust, trust that there is proper stewardship of public resources.
Opaqueness leads to mistrust. Accordingly, any attempt to weaken this bill and its attempt to increase access to information and transparency will be so regarded. As U.S. Supreme Court Judge Louis Brandeis said, sunlight is the best disinfectant.
Canadians deserve to have light shone on government information. Accordingly, I encourage all hon. members to support Bill C-461, the CBC and public service disclosure and transparency act, without amendment.
