:
Thank you, Madam Chair.
My remarks this morning will be brief, if a little bit out of breath.
I will address three issues. First, I will review the origin and the current status of the ongoing court case involving the CBC and the Information Commissioner. Second, I will review the corporation's performance under the Access to Information Act. Third, I will review the situation in other jurisdictions as it relates to their public broadcasters and suggest possible changes to our own act, if the committee should choose to review the current legislative text as part of its deliberations.
[Translation]
First, let me introduce Ms. McCarthy, our new general counsel. She is currently acting as Assistant Commissioner, Complaints Resolution and Compliance.
[English]
The origin of the dispute between my office and the corporation dates back to 2009. My office was then investigating complaints regarding CBC's refusal to disclose records based on section 68.1 of the act. Section 68.1 provides an exclusion from the act for information relating to CBC's creative programming or journalistic activities. However, there is an exception to this exclusion for information relating to the general administration of the corporation.
In the course of our investigations we asked the CBC to provide us with information that had been withheld, so that we could assess whether its decision on disclosure was justified or whether the withheld information fell within the exception to the exclusion. The CBC refused to provide the relevant information, so my office issued a production order to the CBC in relation to certain complaints. That same day, the corporation initiated a judicial review application under section 18 of the Federal Courts Act, challenging my office's authority to obtain records they claimed were excluded under section 68.1.
The Federal Court dismissed the CBC's application for judicial review, and the CBC appealed that decision. The Federal Court of Appeal heard the appeal on October 18, 2011, and has taken the matter under reserve, which limits my ability to comment much further on the case.
[Translation]
Given the ongoing court process, my office has, up to now, suspended the investigation of 196 refusal complaints in which CBC has relied on section 68.1.
Some of these complaints date back to 2007. Given the age of some of the complaints, I raised a concern with this committee, in March 2009, that the failure to retrieve responsive records could have a negative impact on Canadians' right to access information.
[English]
I can report that since our last appearance on this matter, the CBC assured my office that it has started retrieving the records responsive to the complaints that have been put on hold, but it is still not confirmed that the CBC has identified and retrieved the responsive records in all cases.
[Translation]
Madam Chair, this morning, I submitted to the committee a brief statistical overview of the CBC's performance since it became subject to the act.
In sum, I can safely say that the CBC's performance has improved since it became subject to the act in 2007, but I still have serious concerns. Let me explain.
[English]
Since it became subject to the act, the CBC has received about 1,400 requests for information. Of those, close to 1,100 have resulted in complaints to my office. However, as you can see from the document I handed out this morning, the number of complaints relative to the number of requests has been declining steadily year over year. Last year, a special report highlighted that the CBC took an average of 158 days to process access to information requests and had a deemed refusal rate of close to 60%.
Although we have not verified this information yet, the CBC is reporting significant improvements on these numbers in its most recent annual report to Parliament, claiming 57 days on average to respond to requests, and a deemed refusal rate of 22% in the last fiscal year. If one goes on the CBC's website, one will see that they also claim an improved performance for this fiscal year, which is not completed.
Notwithstanding this progress in performance, I still have serious concerns. In addition to the cases currently on hold pending the outcome of the litigation, my office still has around 180 ongoing investigations with the CBC. It is my observation at this time that the current level of resourcing in CBC's access to information office is not sufficient to address the investigation of these complaints with my staff. If there is no change to the current resource levels, the situation will likely be aggravated once the investigations into the 196 on-hold complaints begin.
I'm also very concerned with the guidelines for the interpretation of section 68.1 recently published by the CBC. The guidelines state that an access to information request may be refused on its face by the person with the delegated authority if this person concludes that the requested information is excluded from the application of the act by virtue of section 68.1 on the sole basis of the wording of the actual access to information request. In my view, individuals with delegated authority to make decisions as to whether or not information falls within the exclusion found in section 68.1 must review the responsive records to make a valid decision under the act, including appropriate severances, as required under the act, to maximize disclosure.
[Translation]
It is therefore encouraging that the most recent statistics indicate that the CBC's performance is gradually improving. However, if the reason for improved response time to requests is that the CBC is not receiving and processing records in accordance with the act, as the recently published guidelines suggest, then the decrease in response time may not reflect an improvement in performance.
That said, my office has not yet had the opportunity to discuss the guidelines with CBC officials. I plan to do so shortly. Actually, it was while preparing my presentation for the committee that I learned about those guidelines, which are obviously a major source of concern for me. We will also follow up on the performance of the CBC in the next fiscal year, as part of our report cards process.
[English]
I've also tabled with the committee a review of the freedom of information laws in Australia, Ireland, and the United Kingdom as they relate to the coverage of public broadcasters. I've also included in that document suggestions for change, should the committee be interested in looking at our own act.
In a nutshell, the situation in the jurisdictions reviewed is that public broadcasters are subject to the freedom of information legislation; programming and journalistic records are covered by way of exclusions to their respective legislation; the oversight bodies have the power to review the records to determine the application of the exclusion; and they can order disclosure. In the U.K., the ability of the information commissioner to actually review the records was pursuant to a court decision as well.
I've also included possible changes to our own act, because as Information Commissioner--and as previous information commissioners have also advocated--I believe that exceptions to the application of the act should be limited and specific, and such exceptions should be injury-based. The wording of exceptions should be clear and objective, which is consistent with the existing provisions of the act.
Injury-based exemptions require that the public institution establish a reasonable expectation of harm, and support that claim with specific evidence. A discretionary exemption ensures that the public interest in obtaining access to the requested information will be considered by the head of a public institution, even where the information otherwise qualifies for exemption.
[Translation]
Madam Chair, I believe these suggested changes would be consistent with the purposes underlying the Access to Information Act and would protect the CBC's journalistic and programming independence.
I thank you for the privilege of appearing before the committee. I would be pleased to respond to your questions.
:
The other countries I've mentioned all have exclusions. That's why I think, when the Federal Accountability Act came into effect, section 68.1 was drafted as an exclusion. I don't know. In French, I wasn't
[Translation]
dans le secret des dieux, or in the know, as they say.
[English]
I wasn't behind the scenes with the government when this was drafted, but it seems as though it followed an international model. Although I like the international models most of the time, in this case, I don't see the necessity for an exclusionary provision. I think an injury-based exemption would be sufficient. It actually allows the institution to say, “Well, this information is covered by this exemption, and if it is disclosed it will lead to the following harm, i.e., it will lead to the disclosure of journalistic sources that must be protected.” But it also allows for, in some instances, a public interest analysis, which says, “Well, yes, there is a harm, but is the public interest in disclosure greater than the harm?” That's the analysis you go through when you have an injury-based discretionary exemption. That's what I think would be appropriate in this case. But internationally I would be the outlier, certainly, in terms of the models that exist right now.
:
As I said in my opening remarks, I looked at this on their website as I was preparing for this committee appearance. I looked at their guidelines, which are very recently published. I wasn't aware of those, and I will follow up.
This is something the committee might want to follow up on when CBC comes here. I will definitely follow up on it.
I'm extremely concerned. If it is exactly how I read it and how I understand it, I will definitely have to pursue it with the head of CBC and make a recommendation, on the face of this, that they immediately discontinue this practice.
The other thing I'm concerned about, if that is the practice, is that if there is a complaint subsequent to that, there is a 60-day timeline to make a complaint to my office. If the records were not retrieved in the first place, that creates more delays once the complaint comes to my office.
As well, I don't know what their retention and disposition authority is in terms of their records. What about electronic records? If a request comes in on the first of the month and basically no documents are retrieved, and they say to the requester that it's all excluded under section 68.1, and I get a complaint to my office 60 days later, how many records...? Electronic records, BlackBerry messages--they may be transitory records, but at the time of the request, there's an obligation to preserve those records.
So I'm really concerned about this practice. I will definitely follow it up with the head of CBC. I think it's mistaken and misguided, if they're doing that.
:
Thank you. Good morning, everyone.
[English]
Good morning. Thank you for having me here today. As the francophone research chair in journalism ethics, I'm sure you understand that I will make my presentation and answer your questions in French.
[Translation]
I will make a few opening remarks. I won't read my whole brief now. I will summarize it for you.
As I stated in my brief, I'm not here as a supporter or an opponent of the CBC. I am here as a researcher who has been conducting empirical research for many years, as an observer of the media for 30 years and as a former journalist with 20 years of experience, 14 of them at the Journal de Québec with Quebecor Media.
I have published scientific articles and books, publications that were rather critical of the CBC/Radio-Canada.That was especially the case in my study on the decisions made by the CBC's ombudsman. In addition, on a few occasions, I was an expert witness in cases that went all the way to the Supreme Court, where I opposed some of the CBC's claims.
So, I did not come before the committee to defend the CBC. I have no relationship as a consultant or a researcher with that corporation. Nevertheless, I think that there are important things to be said.
I also want to say that, when it comes to my work, my expertise is limited to journalistic activities. It has nothing to do with the cultural track record of Quebecor Media, which is an important player whose participation in Quebec culture is very positive. My presentation is mostly focused on the journalistic component.
Basically, I want to provide you with some context in order to explain the reason behind today's committee meeting.
For a few years, Quebecor Media has been on what I call a crusade against the CBC. It's a crusade I see as both business-based and ideological. This is the backdrop against which we must analyze the court action involving the CBC and the Information Commissioner.
In my opinion, Quebecor's strategy towards the CBC is primarily intended to serve private and corporate interests—which, by the way, are legitimate. The strategy has very little to do with the public interest.
I believe that goal includes a media campaign—I was going to talk about a media abuse campaign, as others have—to mobilize a certain opinion and, indirectly, parliamentarians like yourselves. I think that one of the goals is to weaken the CBC, whose television service represents significant competition, especially in the Quebec market. Therefore, Quebecor is trying to increase its income and its profits, which are already very significant, given the high level of media concentration and convergence that prevails in Canada. That level is one of the highest in the western world. That is the backdrop against which the issue should be looked at.
Quebecor's strategy is twofold. One of the two approaches interests me much more than the other: the journalistic approach. I think that we're dealing with a kind of a distortion of the journalistic purpose of Quebecor's reporters and editorial writers. The other approach is the high number of access to information requests, and that's probably what the committee is most interested in. I think that journalistic strategy raises very important questions in terms of ethics, professional conduct and journalistic integrity.
One of Quebecor's strategies for achieving its goal was to involve several journalists, or to indoctrinate them—I am using more colourful language. In some cases, that indoctrination has not affected just the CBC; we have seen it in other cases, as well. I have personally heard journalists' accounts confirming that. Those who have been paying a bit of attention will recall that, a year ago, some journalists publicly stated that they had been forced or prompted to produce very negative articles and reports on competitors. I won't go into detail, but emails were exchanged about that.
Over the last few months, Quebecor Media's journalists have asked me to comment, as an expert, on situations involving the CBC. As my comments were clearly not what Quebecor had anticipated, they were never published. I agree that this could be interpreted as editorial freedom, but it does add to the overall context.
This evidence could be deemed anecdotal. However, in 2007, I conducted a survey of a large group of Quebec journalists. That survey indicated that the journalists who felt most ill at ease, those who disliked self-censorship and a lack of freedom most, were Quebecor's journalists. We compared this group of journalists with that of the Power Corporation or Gesca, in Quebec, and that of the CBC. Quebecor's journalists suffered from what I consider to be a form of professional distress. Many of the journalists themselves felt that their work was often or very often meant to serve the company's interests rather than the public's.
I feel that this is the general backdrop against which you should consider the court case you are especially interested in.
That distortion of the journalistic purpose is especially based on the Access to Information Act. Hundreds of access to information requests are nothing to discredit. In a newspaper analysis in 2002, I recall publicly asking for the CBC to have a greater accountability obligation.
The issue involving the CBC/Radio-Canada's accountability is nothing new. However, it has taken a different turn. We must define how that accountability fits in. That's where the lawsuit the commissioner talked about earlier stems from.
As a journalism professor, a political scientist and a former reporter—even as a Canadian—I am a bit worried by the fact that a parliamentary committee is discussing ongoing court cases. I am always worried by this type of threat to judicial independence. I feel a bit like my colleague Sébastien Grammond, Dean of Civil Law at the University of Ottawa, who perceived it as an unprecedented attack on the judiciary and on judicial independence.
So, I think that we have to be careful about that, while, of course, understanding the context these matters fit into.
I also believe that the CBC's accountability obligation should be increased. I think that everyone wants that. It now remains to be seen how much that accountability may be increased.
Notwithstanding the lawsuit on the $500 million mentioned last week, there are accountability organizations for journalism, and that applies to everyone. However, I have noticed over the last two years that Quebecor Media has withdrawn from journalistic accountability organizations, such as the Quebec and Ontario press councils. In some cases, Quebecor has even gone so far as to formally notify or threaten the members of the Quebec Press Council that Quebecor will take some sort of legal action against them if their decisions could negatively affect or harm Quebecor.
I feel that we must look at that issue within the broad context I presented this morning. Of course, I am not a lawyer, and I don't claim to be one, but I believe that there is another important component here. In fact, your committee's name also involves ethics, and I think that you should worry about that component as well.
Ethics is a matter of moral judgment, but it also involves values like dignity, fairness and integrity. In a way, no one should be above those values. I think that those values are scorned by men and women who make decisions in private companies and in large public administrations alike.
That's why I am a little bit concerned by our public discussion of these matters while legal procedures are ongoing.
:
Thank you, Madam Chair. I will read my statement to ensure I stay within my allotted time.
Thank you for inviting me and allowing me to appear before the committee.
I am here as a law professor who has spent over 30 years studying broadcasting law in Canada and abroad, as well as access to information and data protection law.
Over the years, I have done research work for a large number of government organizations and media companies, including the CBC, Quebecor, TQS and Télé-Québec. I recently prepared a legal opinion on the scope of the CBC's access to information guidelines, and that opinion is available on the CBC Web site.
However, my reasons for appearing before the committee today are purely personal. My sole objective is to provide information on the legal framework, as I understand it, governing the operations of broadcasting undertakings in Canada.
To determine the meaning and scope of the section 68.1 exemption, we have to put the provision in the context of the legal framework governing broadcasting activities because the CBC is, first and foremost, a broadcaster. And in that capacity, the CBC is protected, like any other Canadian media organization, by freedom of speech under the Constitution. And that freedom is not limited to journalistic activities but extends to all expressive activities undertaken by the CBC.
Furthermore, the CBC is a broadcaster with a mandate to deliver the national public broadcasting service provided for in the Broadcasting Act. Therefore, the CBC has a duty to account for the public resources it uses. It is this dual role that justifies the CBC's exemption under section 68.1 of the Access to Information Act. Whether we like it or not, reconciling contradictory laws is never easy or cheap. It is a difficult task, but that is the price of democracy.
As set out in section 2(b) of the Canadian Charter of Rights and Freedoms, freedom of expression—including freedom of the press and other media of communication—is understood in Canada to include editorial freedom for all Canadians and for public and private media. In other words, the charter includes the freedom to determine what is fit for broadcast. Therefore, editorial freedom is protected under section 2(b) of the charter. Editorial freedom cannot be restricted other than by law and to the extent that such restriction is reasonable and justifiable in a free and democratic society.
Canadian courts have long recognized that all broadcasters, private and public alike, have editorial freedom. Editorial freedom assumes freedom of principle in deciding how information is selected, assembled and broadcast. The counterpart to editorial freedom is accountability: those who hold editorial freedom are answerable to third parties for the information they broadcast, and no one—
Thank you, Madam.
[Translation]
While it is commendable that they regulate use of the airwaves and other public resources used for broadcasting purposes, public authorities cannot take the place of licensees when it comes to deciding what is to be broadcast. Like their counterparts in the United States and Great Britain, Canadian courts have refused to express the view that broadcasters, the CBC included, carry out a government activity. In summary, the CBC enjoys a degree of editorial freedom similar to that of other broadcasters.
The Broadcasting Act expresses in four places the principle of editorial freedom and the journalistic, creative and programming independence enjoyed by broadcasting undertakings. These provisions of the Broadcasting Act establish an airtight barrier between government authorities and the CBC. For instance, section 46(5) prohibits the minister from requiring the CBC to provide information that could reasonably be expected to limit its ability to exercise its journalistic, creative or programming independence.
As far as its programming activities are concerned, the CBC must answer to the CRTC, not political decision makers. If the Broadcasting Act stipulates that even ministers do not have the right to information that could reasonably be expected to limit the CBC's independence, it is all the more reasonable to assume that persons invoking the Access to Information Act should not find themselves in a more advantageous position than ministers with regard to information.
In summary, the intent behind all of these provisions is to guarantee independence for broadcasters in general and for the national public broadcaster in particular. It is a question of ensuring that broadcasters have the conditions they require to meet their obligations under the Broadcasting Act.
The scope of the exclusion set out in section 68.1 must be interpreted in the overall context of legislation concerning broadcasting undertakings, which ensures that they enjoy independence in journalistic, creative and programming matters. But in the case of the CBC, management of the national broadcaster must be transparent to Canadian taxpayers since it is publicly funded. It was decided that an exclusion would be used, which is in keeping with international practice in such matters. Consequently, the Access to Information Act does not apply to information under the control of the CBC that relates to its journalistic, creative or programming activities.
As for who should have the authority to make the determination, at the appeal or second review stage, regarding whether a record falls under the Access to Information Act or not, that decision is in the hands of the Federal Court of Appeal. Now, I will throw out a few public policy options, which, I believe, come under the jurisdiction of the legislative branch. Given that the interpretation of the act comes under the judicial branch, I do not wish to express my opinion on the matter.
When it comes to public policy options, it is important to keep in mind that section 3(2) of the Broadcasting Act stipulates the following:
[...] that the Canadian broadcasting system constitutes a single system and that the objectives of the broadcasting policy set out in subsection (1) can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority.
To be specific, that authority is the CRTC. The importance of keeping regulations simple and easy to enforce is key, and that goes for all broadcasting undertakings. Making the CBC answer to a number of authorities complicates the accountability requirements that the public broadcaster must meet.
In that regard, it is not clear that the information commissioner is the best authority to oversee the CBC's decisions as to whether a record falls under the exclusion set out in the Access to Information Act or not.
The CRTC is the authority specializing in broadcasting matters and is most certainly in the best position to determine—in compliance with the editorial freedom requirements to which all broadcasters are subject—whether a requested record is related to journalistic, creative or programming activities.
The CRTC is indeed in a position to view the Canadian broadcasting system as a whole and the CBC as a part of that whole. For instance, the commission certainly has the necessary expertise to determine whether the disclosure of a record belonging to a broadcaster could jeopardize the broadcaster's journalistic, creative or programming activities, given the competitive nature of the environment.
In closing, Madam Chair, members of the committee, section 68.1 of the Access to Information Act theoretically excludes information relating to the CBC's journalistic, creative and programming activities from the access to information regime for public documents. The provision seeks to ensure that the CBC is in a position similar to that of other broadcasting undertakings while guaranteeing that it is accountable for the way it spends public funds. As a result, the only documents that can be accessed pursuant to the act relate to the general administration of the CBC and do not disclose information relating to the CBC's journalistic, programming or creative activities.
The question that should actually be asked—
:
I think this is very important. Again, when you allow one person to control so much of the media landscape of Canada, there has to be an issue of accountability, not just a corporate bottom line.
I asked Mr. Péladeau if there were orders coming down the chain. He said, “I didn't get your question.” I asked him if journalists were ordered to write specific kinds of articles. He said, “I don't know where [this is coming] from.”
I asked him, “Where is the level of interference within the newsrooms...? Who sends that message?” He said, “This is not a party. This is a business....”
I then asked, “Do you mean managing the newsroom? Journalists tell us they were ordered to write....” He said, “We have our accountability and a responsibility to our shareholders....”
Number 5, I asked him, “Are your journalists ordered to follow the party line?” He said, “I have nothing to answer to this.” I said, “Should the newsroom be separate from your other vertically integrated operations?” He said, “This is not a party. This is a business....”
And number 7, I asked if he had a firewall to protect his journalists from the corporate interests of Quebecor, and he said, “Our reporters...have their jobs to do, and no one will tell them what to write.”
Is Mr. Péladeau correct in saying there is a firewall protecting his journalists, or, as he said earlier, do they manage their business as a business and the journalists don't get to have a say?
:
Thank you very much, Madam Chair.
And thanks very much, gentlemen, for appearing before us this morning. Certainly we've been hearing some different information than we've heard before at this committee, so it's good to get the opinions on both sides of this. As has been pointed out before, you understand that we are studying this because of the refusal to have the commissioner view the information.
I have just a couple of comments.
I believe, Mr. Trudel, you said the commissioner was not necessarily the best person qualified to oversee section 68.1, and then you suggested that perhaps the CRTC might be the best qualified. We've had other people presenting to this committee over the past couple of weeks who have emphatically stated that they felt the Information Commissioner was eminently qualified and certainly was well capable of making those decisions. Then, of course, we had the commissioner herself here this morning who was suggesting some possible changes to the Access to Information Act. I don't know if you were here and heard what those changes were.
I'll just briefly outline what she told us.
Exceptions to the right of access should be limited and specific. They should be discretionary and injury-based. The wording of exemptions should be clear and objective in nature. An injury-based exemption requires that the institution must establish a reasonable expectation of harm and support that expectation with specific evidence. The discretionary exemption ensures that the public interest in obtaining access to the requested information will be considered by the head of a government institution even where the information would otherwise qualify for exemption.
Then she goes on to say that instead of an exclusion, they would propose a discretionary injury-based exemption along the following lines: the head of CBC may refuse to disclose any record requested under the act that contains information that the disclosure of which could reasonably be expected to prejudice the journalistic, creative, or programming independence of the corporation.
Could both of you please comment on the suggested changes as the commissioner has spoken about them this morning? And could you also indicate whether you feel the CBC should be subject to the act at all?