I will now call the meeting to order.
I want to welcome everyone here today. This is the 50th meeting of the Standing Committee on Access to Information, Privacy, and Ethics.
The committee is very pleased to have today witnesses from CBC/Radio-Canada, represented by the president and chief executive officer, Monsieur Hubert Lacroix. He is accompanied by Maryse Bertrand, vice-president of real estate, legal service, and general counsel. And from the Office of the Information Commissioner of Canada, we have the Information Commissioner, Suzanne Legault.
On behalf of all members of the committee, I want to extend a welcome to everyone.
We're going to ask for opening comments. First of all, we're going to turn the floor over to you, Madame Legault, and then we're going to hear from the CBC. But before we do that, I want to make a few comments, just to set the context and the framework of today's meeting.
As everyone is aware, Canada has access to information legislation. In a nutshell, it means any Canadian citizen or resident can, upon completing the required application forms and paying the required fee, obtain information that is in the hands of the government that is not protected by privacy, national security, commercial interests, or for other legitimate reason. This legislation applies to all government departments and now most government agencies and crown corporations. However, this committee, unfortunately, has seen situations where some government departments and agencies are basically not following the legislation, and instead of providing information in 30 days, they're averaging 70, 80, 90, and in some cases in excess of 150 days. They are refusing to disclose information for no apparent or legitimate reason. On the other hand, many departments and agencies have no difficulty whatsoever in complying with the legislation, and they deserve the commendation of this committee.
Each year the Office of the Information Commissioner does an audit or analysis on a number of departments and agencies and the office rates them. This report is tabled in Parliament and is of course available to the public. In last year's report card, the Information Commissioner reviewed ten departments and agencies. Some, through strong leadership, were outstanding or above average. Unfortunately, five were unsatisfactory or received an F from the commissioner. These departments or agencies were National Resources Canada, CIDA, Correctional Services Canada, Canadian Heritage, and Environment Canada. Foreign Affairs and International Trade received an off-the-chart rating and a red alert. These ratings, of course, are of great concern to this committee.
Two weeks ago, the Information Commissioner tabled her 2009-10 report. She reviewed eight smaller agencies or offices of officers of Parliament. In this review, six of these offices received an above average rating. These offices were the National Arts Centre Corporation, the Office of the Auditor General of Canada, the Office of the Information Commissioner of Canada, the Office of the Privacy Commissioner of Canada, Atomic Energy of Canada Ltd., and VIA Rail Canada Inc. All members of this committee want to thank and congratulate the management and staff of these organizations.
Unfortunately, not unlike last year's report card, there were two crown corporations that received an unsatisfactory assessment. First, CBC receive an F, or an unsatisfactory assessment, and, more alarming, Canada Post received a red alert or off-the-chart rating. It's quite likely that Canada Post will be called before this committee to explain why they have failed, if you accept the assessment and information given to us by the Information Commissioner, and refuse to follow the access to information legislation.
Today, as I've already indicated, the committee is dealing with the CBC. The CBC is in a little unusual position, in that their reporters and producers use, quite correctly, I hasten to add, Canada's access to information legislation in preparation of their products. Again, if you accept the findings of the Information Commissioner, they're in the dubious position of explaining to Parliament, through this committee, why they want every department and agency within the Government of Canada to follow this legislation, whereas they, themselves, do not follow the legislation. Again, that's if you accept the findings of the Information Commissioner.
The committee takes this matter very seriously and is pleased to have the Information Commissioner with us today, as with the chief executive officer of CBC.
I'm now going to turn the matter over to the Information Commissioner for her opening remarks. Again, welcome to the committee.
My remarks today will address the report cards contained in my special report entitled “Open Outlook, Open Access”. I will also briefly speak to my office's experience with the CBC in investigative matters. However, before I discuss these two issues, Mr. Chair, I would like to express my thanks to the committee for the follow-up it did on last year's report cards exercise. The report and the work of the committee in this regard ensured that federal institutions are held accountable for their performance in complying with the act.
As noted in this committee's twelfth report, the purpose of the report cards is not to chastise institutions. The process is a tool at my disposal to effect greater compliance with the requirements of the act. It allows me to see compliance issues in their full context and to recommend meaningful solutions. With this in mind, my office undertook a report card on the performance of the CBC and made four recommendations to the institution on ways to improve their compliance with the act.
Right from the start, in September 2007, CBC struggled to respond to access requests due to an initial downpour of requests in the first few months that it became subject to the act. Subsequently, my office received 534 complaints against the CBC between September 2007 and April 2008, which represented 22% of all complaints registered by my office that year. Most of these complaints were delay-related. In fact, since 2007 the CBC has consistently been in the top three institutions against which complaints are filed with my office.
As you mentioned, the CBC received an F rating because of the delays in processing access requests, the high deemed-refusal rate, and the long average completion time, which is 158 days. These delays were largely due to the backlog of requests CBC carried over from the previous years. We noted, however, that they also reflected long retrieval, review, and approval processes.
Towards the end of 2009-2010, we saw signs of improvement in CBC's performance, in terms of backlog reduction and a shorter response time for new requests. As a result, the number of delay complaints registered by my office has decreased this year.
Prior to coming here today, I surveyed some of my investigative staff to get their views on the CBC's performance in the current reporting period. They felt that the CBC has made efforts to improve the effectiveness of their internal processes and to provide more timely responses to requesters. Most notably, they indicated that there is good collaboration with the new ATIP director at the CBC.
I noted in my special report that, as a result of the legislative changes introduced by the Federal Accountability Act, the act now has an increased level of complexity that causes uncertainty in the legal interpretation of these new limitations. For example, under section 68.1, the Act does not apply to any information that is under the control of the CBC that relates to journalistic, creative or programming activities other than information that relates to its general administration. Consequently, my office deals with more complaints against new institutions and is involved in more litigation, including one involving Canada Post.
The CBC has refused to provide investigators in my office with records that it claims are excluded by section 68.1 of the Access to Information Act. This approach, it is notable, differs from that taken by Atomic Energy of Canada Limited, which provides my office with all information it claims to be excluded under their section 68.2 of the act.
I fundamentally believe, Mr. Chair, that an independent review of the records or information withheld by CBC is essential to ensure that the exclusion has been properly applied.
The scope of my investigative powers in relation to CBC's refusal to disclose records under section 68.1 is, as you know, the subject of litigation. In the first instance, the Federal Court ruled in favour of such an independent review by my office. The court explained that I must have the authority to determine in an objective and independent fashion if the records fall under the ambit of the exception and if they qualify for exclusion. This decision is currently before the Federal Court of Appeal, which limits my ability to make further comment on the matter. However, I note that due to this ongoing litigation, my office has suspended investigations in more than 180 refusal complaints relating to section 68.1. Some of these complaints go back as far as 2007.
Mr. Chair, the delays caused by this litigation have had a significant impact on the ability of the public to obtain public sector information in a timely way. I'm concerned that there may be further delays once these legal proceedings are over. It has been the experience of my office, while investigating some of our old complaints, that an institution's access request processing file has been incomplete, and responsive records have often been difficult to find and retrieve; electronic information has sometimes been deleted, and personnel knowledgeable about the requested information have no longer been available. Therefore, I would suggest that a best practice for institutions in which access to information requests are subject to litigation would be to ensure that the search, retrieval, and processing of responsive records be completed and held in abeyance until all proceedings are completed. This will ensure that no further delays occur after the end of litigation.
I urge this committee to do what it can to ensure that the recommendations made to the CBC in its report card are implemented and that the impact of the delay resulting from the ongoing litigation is minimized.
Mr. Chair, members of the committee, thank you for the opportunity to talk with you today.
I am sure you have seen stories about CBC/Radio-Canada and access to information. And almost all of that likely in the Sun and Le Journal de Montréal newspapers, owned by Quebecor. I'll talk a little bit about that in a minute, but first I would like to address our performance under the Access to Information Act.
We received an "F" for the year ending March 31st, 2010. No one at CBC/Radio-Canada finds that grade an acceptable one, and we have been working to ensure that it is not repeated. In fact, in her report and remarks, the commissioner pointed to our improvements since March of last year, and I can tell you that we appreciate the recognition.
Let's look at the record on deemed refusals for example. When we came under access, our resources were frankly overwhelmed by an unpredictable volume of requests. We had hired three full-time and one part-time staff for the ATI office based on the advice we had received from other organizations about how many requests we could reasonably expect in the first year. No one predicted we would receive 434 requests in the first two months alone. This led to complaints about delays in responding within 30 days—the deemed refusals.
In 2007/2008, our deemed refusal rate was about 80.5%. We have worked very hard since then to fix this. We've dedicated more resources—we now have seven full-time staff to process requests. We've developed better internal procedures, and we've worked collaboratively with the commissioner's staff to respond to complaints in a way that is prioritized and transparent. I can tell you that our record has improved every year since.
Last year, as the commissioner reported, our deemed refusal rate was down to 50.7%. This year, to the end of February, it has fallen to 20.17%. In fact, in this fiscal year we have received one deemed refusal complaint, which was subsequently withdrawn.
The average number of days it has taken to respond to a request has also dropped, from a high of 187 to 61. As I said, we're working at this and we are committed to meeting the commissioner's expectations.
We've also been doing more. This year we posted on our websites over 24,000 pages of documents that have been released under access to information so that they are easily available to any Canadian. These documents include information on agendas, audits, policies, and retreats, as well as all invoices submitted with the expenses of senior management. This is in addition to the expense reports we already publish proactively each quarter. As you know, posting this material goes beyond what is required under the act. In fact, no other federal institution has made so many access documents available on its websites, and we will enhance this service and keep adding additional categories of information in the months ahead.
We continue, though, to receive a large volume of requests for access to information. In fact, of the organizations graded in the commissioner's most recent report, we recorded the highest number of new requests: 247 for the year ending March 31, 2010. The next closest was 108 at Atomic Energy of Canada. Canada Post received 78. The Information Commissioner received 28. In total, as of March 4, CBC/Radio-Canada has received 1,340 requests for information under the act. We've responded to 1,307 of those and released over 77,800 pages of information.
One would think that all of these requests reflect Canadians' interest in CBC/Radio-Canada, but by its own admission, most of these requests have been filed by Quebecor Media Inc. They have every right to do so, of course. Our own journalists use access to information to support their reporting, as the chair pointed out a few seconds ago. The difference is that we don't use ATI to seek information about our competitors and we don't use it in a campaign to further our own commercial interests. Quebecor newspapers insist they are, to quote them, “holding the public broadcaster to account”. However, that's not what they call their series. They call it “Down the Drain”, and the 66 stories they have run under that banner demonstrate that their motivation is to attack a competitor and to promote and benefit their own news channels.
For our part, as strong believers in accountability, we will keep improving our performance in handling access to information requests. But when others use that information to distort or misrepresent the facts about the public broadcaster, we will speak out.
I think I should also say a few words about the case between CBC/Radio-Canada and the information commissioner that is currently before the federal court. CBC/Radio-Canada is the only journalistic organization subject to access to information. Parliament recognized that our independence as a public broadcaster needed to be protected and, so, specifically excluded from the act information that relates to our journalistic, creative or programming activities.
The commissioner wants to be able to review material that is excluded from the legislation. We believe that only a judge should have the right to demand the disclosure of information that relates to our creative activities or is journalistic or program-related. It is important to clear up any confusion over the rules under which we operate.
Finally, a word about accountability. CBC/Radio-Canada is a $1.7 billion corporation. Two-thirds of that comes from Canadian taxpayers in our parliamentary appropriation. I believe Canadians should be assured that such an investment delivers value to them, not just in terms of the services they can see and hear every day, but in the way we operate. That is why each year we report on operations to our minister, to the CRTC, and to Parliament. It is why the Auditor General reviews our books annually, with a special audit every 10 years; it is why we post on our website the travel and hospitality expenses of our senior executives; and it is also why we are subject to access to information.
We recently published our 2015 strategic plan, a road map for what Canadians can expect from their public broadcaster over the next five years. With this plan, which is on our website, comes specific metrics to measure and report on our progress twice a year.
It is through all of these measures, Mr. Chairman, that I believe Canadians will have confidence that their investment in CBC/Radio-Canada is a good one.
Maryse and I would be happy to take your questions.
And thank you, witnesses.
One of the concerns with some of the agencies, and not only your own, not only CBC, was that when the government applied access to information to them--the Canadian Wheat Board is another one.... There are certain people out there who really want to use access to information, I believe, to either find reasons to attack the CBC or the Canadian Wheat Board or find ways in which they might be able to gain commercial advantage. That happens with some agencies, and I think CBC is one and the Canadian Wheat Board is another.
In any event, you go into Quebecor somewhat.... You do say that you've received 1,340 requests for information under the act. How many of them would be from regular citizens and how many would be from Quebecor? Do you know?
Mr. Chair, I don't know where we can go on this type of thing. I'm a very strong supporter of access to information, but I'm not a supporter of access to information being used as a disruptive tool or a way of undermining an agency. As I said earlier, I think we will see that in other areas.
What this is, in my view, is probably an abuse of the system. The system was set up with the best of intentions, but this is an abuse of the system for somebody else's commercial interests or for a political agenda to get rid of or undermine our public broadcasting system, which I will admit I'm a strong supporter of. Do you have any idea how that can be handled?
On the other hand, I am concerned about the F rating for CBC, because, as the chair had mentioned earlier, we all use access to information, and in particular CBC journalists and reporters do, and they expect departments, the government, and others to abide by the rules. So an F rating isn't very good.
We're kind of caught in a quagmire here. We want to see the legislation abided by, but how do you prevent frivolous access requests or those for other political agendas from monkeying up the system?
As you read, the act provides for an exclusion on all of our journalistic, creative, and programming activities. Those words are not words that the legislator chose with no purpose. Those are the exact words that come out of the Broadcasting Act. So they've lifted that, and I assume, in the way the act was drafted, that they wanted to ensure the integrity of the activities of the national public broadcaster. That's very important.
I'll give you an example of one of our journalists, let's say in Quebec, doing an important probe on the construction industry, having a couple of journalistic sources, and these sources not being identified to even the management team at CBC/Radio-Canada. Under the Broadcasting Act, certain of the information that we have in our hands is not even available to our minister or the Minister of Finance, or is not disclosable because it's protected by these words. The example of our sources of information is, I think, the most obvious one.
Maryse, would you like to add something to that?
I have just one point on Madame Legault's 61 as compared to 51. The information we just gave you was at February 28. It constantly changes. One of the last requests we got was to look at 50,000 pages so that we could deliver an answer.
Those numbers fluctuate over time. So Madame Legault was right about the information she has and we have. Depending on when you ask the question, she can't validate, because she hasn't seen it. So I'm not surprised that we're not getting a mid-term grade, even though I would really like a mid-term grade, because based on the information I have, you wouldn't get an F right now.
That being said, let's go back to requests made. We understand that we have an obligation under the act. We deliver the information based on the request, based on the system we've developed with Madame Legault. If you want to make CBC/Radio-Canada look good, send us 500 requests related to the administration of CBC/Radio-Canada. You will get 500 clean answers. If you want to make us look really bad, send us 500 requests directly under activities of journalistic programming or creative activities. You're going to get 500 issues. They will either be redacted or will be simple refusals to follow the information, based on our interpretation of section 68.1. It's as simple as that.
You've heard from me the leadership involvement in access to information. I'm sitting here, and I told you that I wasn't happy and that we're working very hard to improve on our situation.
I want to go to the history—two seconds, it's very important—because yes, we knew access to information was going to affect CBC/Radio-Canada. So we went around and we did our due diligence. We went to the Treasury Board. We tried to find out from the Treasury Board what their experience was and what the experience of different organizations was. We went to the BBC. We asked the BBC, how are you dealing with this? Remember the BBC has 30,000 employees, three times more than we do. It serves about 75 million people, about two and a half times what we do. In 2005, when they started this process, they were getting about 80 requests per month. Based on the fact that they had 10 people inside their shop for 80 requests a month, we figured half, maybe, for a population of our size, and we staffed accordingly. No way in the world could we have foreseen 434 requests. That was simply off the chart.
So we did our diligence. We thought that we had prepared accordingly. Obviously we didn't. We were surprised, and we have been trying to catch up ever since. And as you saw from the numbers I quoted to you, we're getting better, and we're still working on it.
Madame Legault, can you take us through a request here? There's a little bit of uncertainty or lack of clarity to this whole issue.
Some individual citizen, whether it's QMI or whatever, makes a request. I think most Canadians would agree that if it involves confidential sources in the construction industry, that would not be something that really should or would involve your office. But let's say in a hypothetical situation that the requester wanted the expense claims for a certain manager within CBC for the month of February, and CBC responded and said “No, that's programming, creative production, a journalistic thing, and we're not going to do that”. You don't have power to order.... They just fold their hands and say “No, we're not going to do that”, and then they say “We're going to go to court”. Is that what happens here?
This is not rocket science. We as parliamentarians would like to see a very simplified version, whether it requires a legislative amendment or not. Don't forget, when you're in court the taxpayer is paying both sides of this situation, and I don't assume for a minute it's cheap. Why can't we adjudicate? If it's legitimate journalistic programming and creative, we as parliamentarians would like to have it adjudicated very quickly. There might have to be an appeal mechanism, but not to drag it on so you're dealing with situations from 2007. If it's legitimate—let's say the sources on a media thing--to me that would be a journalistic issue.
Can you clarify this issue and explain just what you see the problem to be?
I'll try to answer that question.
First of all, I don't want to use any specific example. We do have a lot of complaints in our office in relation to the CBC, so I don't want to use your example, for instance, Mr. Chair, simply because I have to preserve my objectivity. But I can say the following.
When a requester makes an access request to a federal institution, any federal institution, the federal institution then has to collect all of the responsive records. Then they will go through the records and they will apply exemptions or exclusions that are provided for under the legislation. They make their own determination as to which exemptions or exclusions they think should apply under the circumstances, and they have to exercise their discretion in terms of the exemptions in deciding whether or not the information should be disclosed because it's in the public interest or it should not be disclosed. Then they send the redacted documents to the requester. If the requester is not satisfied with the response, they can then make a complaint to my office.
Now, when we do investigations, normally we obtain the documents, all of the documents, the unredacted documents, from the institution, and we review all of the exemptions or the exclusions that have been applied and we make an independent and objective assessment as to whether or not we agree with the institution under the circumstances. Then we make recommendations to the institution. As you know, I have no powers to order the disclosure of any documents; I can only recommend. Through this process we obtain the representations of the requester or the complainant at that time. If the institution disagrees with our recommendation, they can refuse to accept our recommendation—usually it's because they refuse to disclose information—and then two things can happen: I can take the matter to Federal Court, with the consent of the complainant, or the complainant can take the matter to court himself or herself. I have no powers to order disclosure of anything; I can only make recommendations.
That's how it works. The only exception to this rule is cabinet confidences, because there is a specific process in the Canada Evidence Act, as you know, under section 39, for the certification process. So that's a different process.
Ladies and gentlemen, thank you for coming here to speak to us today.
As you know, this committee has been conducting a study on open government over the past few weeks. I tell you that because I want to draw a parallel between access to information and open government.
As part of our study on open government, a number of witnesses told us that the number of ATI requests had dropped sharply because their department was being more open and disclosing more information to people.
I, myself, recently wrote to a department asking for a list of the government's legal service providers. The answer I got was that the government would not disclose the names of those suppliers.
To me, that is a flaw of an open government. I then made a request under the Access to Information Act. The person who had written to my office asking for the information initially also made the same request, as did our party's critic. So three requests for the same information were made. But had that information appeared on the Web site, there would have been three fewer requests.
I want to know whether you had worked on an action plan to help your organization become more open and to reduce the number of access to information requests. Or are you of the opinion that such an approach has no place at CBC?
No. There are two things in your question. I think it's important to clarify.
The Information Commissioner has very broad investigative powers under the legislation. We have the power to compel people to testify under oath, and we have the power to compel the production of records in order to conduct our investigation.
The position we're taking in the Federal Court case with the CBC is that this power to review the records applies to the CBC, notwithstanding section 68.1.
What I do not have the power to do--and that's also for all institutions--is I do not have the power to order disclosure at the end of an investigation. For instance, I do not have the power to order the disclosure of journalistic sources. The only thing I can do is to make recommendations to the institutions, and that's for all institutions. If the institution should disagree with my recommendation to disclose, the matter can then go to the Federal Court. Either I would take it to the Federal Court with the consent of the complainant, or the complainant can go directly to court at that point once my investigation is completed, and that case would be against the institution.
Okay. Your time's up, Mr. Calandra.
That concludes the second round. Perhaps I'll give a couple of minutes to Madame Freeman, but I just want to clarify something again, and I'm going to follow up on Mr. Calandra's point.
I just want to ask a question of you, Mr. Lacroix. It seems to me, to summarize this thing, there are hundreds of requests out there, and they're being denied on this so-called journalistic, programming, and creative, which is legitimate. But CBC is self-adjudicating that. They're not allowing any records to be seen by the Information Commissioner.
You realize that if tomorrow or the next day some member of the public comes out with a request that's being denied on these grounds, and it's obviously really not a journalistic, programming, or creative issue, a lot of your testimony here will be discredited. You realize that, do you?
This is why section 68.1 exists. This exclusion, sir, exists for that purpose.
Actually, I'd like to remind you that this should not be a surprise, because when legislative committees were formed to study Bill , for example, some people in this room were there. Very good questions were asked, and Mr. Reid, who was a predecessor to Madame Legault, actually said that if this were written in the way it is written now, he didn't think he could gain access to the documents that were under section 68.1.
So it's not as though the legislator, who chose to use the same kinds of words you find in the Broadcasting Act, did not know that this was a conclusion to which we would come and about which we would have a conversation. This is why we're in front of the court. These matters sir, also went to the Senate committee that reviewed this a couple of months later, with the same good questions and the same issues of substance.
Thank you to the witnesses for being here today.
We were given a commentary by Michel Drapeau, who is an adjunct professor of law at the University of Ottawa. He made some significant comments here about his expectation as a professor of law dealing specifically with access to information issues. He made the points that he believes the CBC, being a media corporation, should have been particularly well prepared to anticipate the number of ATI requests. He said that they should have an ambidextrous capability to foresee what preparations, measures, arrangements, and so on were necessary. He also said that CBC would not want to risk its well-deserved reputation and pointed out it has the necessary financial assets.
He went on to say that not surprisingly, from the very start CBC complained of being swamped by ATI requests. To deal with the influx, CBC stalled the process by relying on being granted extensions. Further, he said that CBC continued to act surprised by the volume of access to information requests.
If I were responding to a report that was done in 2008 with a 57% refusal rate, I probably could accept that as a member of Parliament, but here we are four years into the process and we're still dealing with a 57% refusal rate. I guess I find that difficult to justify.
I have to take at face value your comment that this year is better. We don't have the actual evidence of that yet in a report, but how can we, as members of Parliament, be assured, after four years when we've only gotten to 57%, that in the next year we're going to get down to 20%? That's my concern.
There are a bunch of things. First, I'd be happy to comment on Mr. Drapeau's paper if we could get a copy of it. We were not fortunate enough to be copied on it, so I have no idea what this is all about.
As you know, there's a clear link between Monsieur Drapeau and Quebecor Media. He doesn't work for them, but he has as a client sometimes Quebecor Media Inc.
Yes, 20.17% is where we are right now. You're going to have to take my word for it until you see it in Madame Legault's report the next time she comes in.
On being prepared, I tried to address this a few minutes ago. Let me come back to that. When we became subject to access to information, we actually did our diligence. I told you that we talked to the Treasury Board Secretariat and tried to find out the numbers and what the federal government agencies and crowns were getting in terms of volume. We went to the BBC, because the closest thing to a broadcaster like ours that is subject to access to information is the BBC. We looked at the size and their number of requests. We actually got 434 requests in the first couple of months. If you look at their numbers, they got 80 requests for 70 million Brits, and their organization is three to five times bigger than ours is.
Yes, we prepared according to our due diligence. We were surprised and overwhelmed, and we're working on it.
I want to thank you very much.
The committee has a few other minor matters to deal with.
The first item is the approval of the minutes of the steering committee meeting, which was held earlier today. There are only two items that require approval and discussion. The first is that the proposed committee business calendar be approved as presented. That calendar has been circulated. You all have a copy.
The second item is that the committee commence a study on the special report of the Information Commissioner, “Open Outlook, Open Access”, and that we call before us both the commissioner and the president of Canada Post, Mr. Deepak Chopra. They would be invited to appear before the committee probably sometime in April, or the early part of May, depending on the schedules of witnesses.
The chair would entertain a mover for that motion.
It is so moved by Mr. Siksay.
(Motion agreed to) [See Minutes of Proceedings]
The Chair: The last item is the motion from Madame Freeman.
I'll get Madame Freeman to read this and then perhaps speak to it, for up to two minutes. We'll entertain a few interventions, and then hopefully we can conclude.