Thank you, Madam Chair.
I'd like to introduce my colleagues from the CRTC. Christianne Laizner is General Counsel, Telecommunications, and Graham Sheppard is the Senior Annual Returns Auditor.
I understand that you have asked me to appear so that I can discuss the CRTC's administration of access to information requests. I will provide an overview of our approach and then refer to the Local Programming Improvement Fund—a program you seem particularly interested in—as an example of how we apply the legislation.
There are four central principles that have governed the CRTC during my mandate: transparency, predictability, fairness, and timeliness. You will note that I put transparency first. The CRTC is a public organization and members of the public should have the clearest possible picture of how we operate and how they can interact with us. As a government institution, we have been subject to the Access to Information Act since it came into effect. We take access to information requests seriously. We ensure they are processed in a timely manner. Administering the act involves certain costs, but we view these as necessary to ensuring that the commission is as transparent as possible.
As I understand it, you're interested in how we handle information furnished by third parties, particularly information related to broadcasters. Our golden rule is quite simple: when in doubt, disclose.
In order to do our work as a regulator, we often require parties to submit financial, commercial, technical or other information as evidence for our proceedings.
The submitting party may declare such information or parts thereof confidential, as in its view public disclosure would harm its competitive interests. Unless the party itself discloses this information, we keep it confidential.
If we receive an access to information request for such material, after consultation with the submitting party, we will release the non-confidential part, but we will not provide that part of the information for which confidentiality has been established.
If the requester takes the matter to the Federal Court, we will provide the requested documents to the court under seal, but we take no position. After listening to the requester's argument and the counter arguments from the party claiming confidentiality, the court will determine what information, if any, can be released. We then implement the court's decision.
This is the way we operate, and we have never seen any reason to operate in any other way. Compliance with access to information requirements is not an issue with us now, nor has it ever been.
Now let me say a few words about the local programming improvement fund.
The Local Programming Improvement Fund is a good example of our insistence on transparency as a fundamental principle. A little background may be useful.
The fund is our response to a serious problem affecting consumers outside the big cities. Conventional TV stations in small markets have been in precarious financial shape—especially since the worldwide financial crisis struck in 2008.
These stations have found it increasingly difficult to bear the costs of creating their own local programming.
Canadians value their local programming. It reflects their communities and their interests and concerns. Local news is especially important to them, but this content is unfortunately not self-financing in small markets. Therefore, in order to maintain and improve the quality of local programming, we created the LPIF, the local programming improvement fund, in 2008 and began operating it in 2009.
The money comes from a percentage of the gross broadcasting revenue of the cable and satellite distributors, which has been set at 1.5%. Small market stations across the country broadcasting in English and French are eligible for LPIF support.
How do we ensure transparency and accountability in the use of LPIF support? We established the following specific reporting requirements. First, stations must provide an annual LPIF operating report to the commission. The report is designed to show how LPIF moneys have been used to improve the local programming provided to the markets. The improvement must be both quantitative and qualitative.
Here are some of the indicators that must be documented to show that the funds have been put to good use: evidence of audience success and viewer satisfaction; increases in local advertising; increases in original local news stories; the number of local news stories that are picked up nationally; expansion of the news bureaus; and increases in the quantity of the local programming broadcast.
Second, stations must also submit an annual statement of direct local programming expenses. The total disbursed in the broadcast year 2009-2010 was just over $100 million.
Third, we have created an oversight panel, made up of three commissioners, that will investigate any allegation of non-compliance with the fund's terms and conditions. Given that the annual operating report and the statement of direct local programming expenses are filed in confidence, we cannot publish them on our website. However, we publish the following information to provide maximum transparency to the public.
So we put the following things on the website: audited financial statements of the LPIF showing the total amount disbursed during the broadcast year that ended August 31, 2010; a list of eligible stations for 2009-10; the distribution of LPIF moneys by region; and aggregate annual returns that identify the amounts contributed to and received from the LPIF by major distributors and broadcasters respectively. You can find all this information on our website, and it is also included in annex A of my remarks before you.
You may be interested to learn that we have received an access for information request regarding how much each individual market station received in LPIF money. We consulted the broadcasters. The CBC and Rogers had no objections. The others claimed confidentiality. We therefore released the data regarding CBC and Rogers, which I have attached as annex B.
If the requester goes to the Federal Court to obtain similar information from the other stations, lets say, CTV or Global, we will adopt the procedure I explained before. We will take no position. We will deliver the documents under seal to the court and let the opposing party try to convince the court of its position. We will abide by the court ruling.
I hope this has given you an idea of how we treat access to information. We will be pleased to answer any questions that you have.
I think it's important that you specify that. You know that in the past I have referred to the CRTC as the black hole of accountability and transparency for all issues. We ask simple questions and we never get an answer. I'm glad you clarified it. It's not the CRTC that's the black hole of accountability; it's the private broadcasters who are refusing to give up the most basic information.
I'd like to ask you about a letter you sent on June 20, 2011, regarding the question about the LPIF fund, which Canadian taxpayers have paid into. We should be able to find out if local television stations are using it and how many are using it. You wrote, in response, that those records were not being handed out pursuant to section 25 of the act. And if I heard you correctly, you said that the CBC and Rogers did not have a problem with giving up information on the LPIF, but the other private broadcasters refused.
I'm not accusing you of not being transparent, but it seems a fairly straightforward question. If Canadians are paying millions of dollars to keep the bottom line of a private broadcaster alive...? We have had questions on this. My good friend Mr. Del Mastro and I have raised questions in the past. We're not helping the bottom line of a company that doesn't want to invest in local programming. If the taxpayers pay the full freight, the taxpayers should know.
Are you saying that the private broadcasters would force the public to go to Federal Court to find out information about how taxpayer dollars are being spent?
Thank you, Madam Chairman.
Thank you, Mr. von Finckenstein, Mr. Sheppard, and Ms. Laizner for appearing today. I much appreciate your attendance.
Mr. von Finckenstein, you said four central principles have governed the CRTC during your mandate and you chose to put transparency first. You put that as the overarching principle that's guided your governance of the CRTC, and I want to commend you for that. You said that, as the CRTC is a public organization, members of the public should have the clearest possible picture of how you operate and how they can interact with you as a government institution and that your golden rule was simply this: when in doubt, disclose.
I think a lot of folks would argue that when in doubt the CBC has exercised section 68.1 and forced those seeking access to information to achieve it through the courts. The Information Commissioner has gone to court and in fact won a ruling. You've indicated that if a matter goes to court and the court rules that the information should be released, you'd release it. The CBC has actually taken the next step of appealing that, following a court decision, and not appealing whether it should be released but whether or not the Information Commissioner has the right to see it in the first place. I think it's important to establish that.
Mr. Angus has raised this issue about public versus private broadcasters and talked about what we expect of private broadcasters. I know you request and receive financial filings, and so forth, from the private broadcasters. Do they tend to comply with that? Do you have problems with the private broadcasters complying in that regard?
We're talking here about third-party information, that is, information that is not ours but which people have filed with us and they claim is commercially confidential.
This is a very dicey thing. On the one hand, you want to disclose as much as possible; on the other hand, you want to have people file in confidence. You don't want them to be reluctant to file because they're afraid you will disclose it and hurt them financially, or hurt them by releasing data that is extremely sensitive in their view.
I think the present system is fine. You could improve it. You could decide that the Information Commissioner rather than the court should make a decision. You could also mandate time periods, as we have done in other pieces of legislation, so that when there is a claim, it goes before the court and people have so many days to file and that a decision should be made in 30 days, etc. So you could take out the delays.
But the basic principle that a neutral third party has to decide whether your claim to confidentiality is legitimate or not is, I think, correct. I wouldn't want to be in a position of deciding a case in which CTV claims something is confidential and I don't think it is, and so we disclose it and hurt them commercially.
By definition, being the regulator, we have a certain point of view, a certain attitude towards these issues; we don't have the neutrality that's required to decide this issue.
The fund has now been in operation for three years. As I've mentioned, Canadians really value local television for what it is: it is local and brings to the news what is happening in your local area. We've heard that over and over in our hearings. Yet when you run a television network, you find that it is very expensive and isn't self-financing. Therefore, you try to commoditize it: you try to have general news for a whole region or the whole country, rather than just local news in one locale.
We decided, since this is key for local television and obviously isn't self-financing, that we should make sure that it is improved, that there should be sufficient money. It starts with such things as having decent equipment, having enough reporters, being on the scene, and doing a professional job—not with a more or less amateur video camera, etc.
We had a hearing to examine how much it should be. We first set it at 1% and then we set it at 1.5%. We decided it can only be for the small markets, i.e., the markets that really don't have the size to support themselves in both English and French. We have a formula whereby you have to prove your eligibility: you in effect have so many hours of local newscast in that region and redistribute it. It is a fund that is operated by a law firm.
The question now becomes, has it been successful? It's $100 million per year, which we have provided for three years now. Have we had the desired effect? Has the local programming stabilized? Has it met with receptivity on the part of the viewers? Has there been increased viewership? Is it appreciated? Have some of the local stories that otherwise don't get reported been picked up and broadcast nationally?
As Mr. Del Mastro pointed out, there are two sides. One side thinks it's too little, that we need more. The other one says you don't need it at all; get rid of it. So we said, let's have a review in the spring of 2012 after three years' experience. We'll have a public hearing at which both sides will come forward. Then on the basis of the information we gather and the evidence presented before us, we will decide what to do.
Thank you, Madam Chair.
And thank you to our witnesses as well. The early start seems to be working okay for everybody so far.
Mr. von Finckenstein, I'd like to follow up on the earlier questions by my colleague, Mr. Butt, regarding Judge Boivin's ruling that the Information Commissioner, not the CBC, should decide whether or not a request under section 68.1 should be completed.
As we're trying to find our way through this whole milieu, could you offer us some advice or your thoughts on how to create a better set of standards? You've talked about legislation. You've talked about a double exemption. I particularly like your philosophy of when in doubt, disclose. I just wonder if you could offer us some advice and direction on how we could go forward, from your perspective, to ensure that the Information Commissioner has the authority to do what she is there to do and not leave it to the judgment of, say, the CBC or others.
That's a value judgment. You've read Judge Boivin's decision. It's now under appeal. If you wanted to ensure...all you'd have to do is to change that very provision and say the CBC may claim exemption for journalistic...and leave out the last tail, except for the exemption to the exemption. In that case it would be clear that this is at the discretion of the CBC, but the commissioner would have to satisfy herself that it had been properly enacted.
In the wording of the statute right now, it says that the act does not apply, except for.... So that something applies and something doesn't. That's what's creating the problem here and that's why the judge made his decision and the CBC said no, if it doesn't apply, it doesn't apply, and nobody should have the chance to look over our shoulder. Both are perfectly legitimate positions.
We now have a ruling and we'll see whether the ruling stands or is reversed.
The problem is in the awkward drafting. These are not my words. Judge Boivin himself said it's very awkwardly drafted, and that's why you have the problem you do. Either it doesn't apply or it applies. That's one system. The other is to create an exemption, and when it's an exemption, the commissioner will have the power each time to see whether the exemption has been properly exercised or not.
I'll try to get through this.
I wanted to go through some of the appendices that have been presented. Perhaps, Mr. Sheppard, you could give me some of the information on them.
I come from the region of Red Deer, where we have 92,000 people. We lost our CBC many, many years ago, and CTV left as well. One of the things we're talking about, of course, is some of the money that has been transferred. I go back to appendix A(3), where you look at the different broadcasters and the money that has been spent in different parts of the country. First of all, I'd be interested in what the rationale is for some of that distribution—and I realize that it's information from 2006 to 2010.
Second is just a technical point on your local programming improvement fund. We notice Alberta as being the home to Portage la Prairie, which of course it isn't. So I am curious whether or not that was put into the list that you have and whether the funding is in the right spot.
Third is about appendix A(4). The CBC/SRC has received approximately 45% of all of the money that comes from the LPIF. Again, perhaps you could get into the rationale of that.
Thank you, Madam Chair.
The appendix on the distribution of moneys by region is based on the eligibility of stations. Stations are eligible, based on their location and population. This is for non-metropolitan areas.
Based on the identification of these stations, the amounts of funds allocated to them have been summarized in appendix A(3). You'll see the five regions that have been identified. The amount for CBC has been identified separately from all the others because that information was made available, as you see, in appendix B for each of the CBC stations.
With respect to the amount of funds asked in appendix A(4), the CBC received $34 million, that being 34% of the fund for its first year of operation. You will notice on that page as well the amounts of payments to the fund and the amounts received from the fund by certain integrated broadcasters. As you can see, that totals to the amounts in the audited financial statements in appendix 1.
That's the process that's used with respect to distribution.
Thank you so much, Madam Chair.
My name is Gregory Thomas. I represent the Canadian Taxpayers Federation as its federal and Ontario director.
We are a non-partisan, not-for-profit political advocacy group. We have about 70,000 supporters across the country. We've been around for 20 years, and our mission is lower taxes, less waste, and more accountable government, at all levels.
I want to state at the outset that we sometimes get caricatured for our positions. We've not been actively antagonistic toward the Canadian Broadcasting Corporation, and we don't have any ongoing campaign against the CBC. We're not lobbying for any sort of adjustments to the CBC, apart from our overall belief that the budget should be balanced.
We actually submitted a plan to the House finance committee to balance the budget in two years, and the described our plan as draconian. If Jim Flaherty thinks that budget-cutting proposals are draconian, I guess that probably explains where we stand fiscally. We believe in balancing the budget, but we're not out to get the CBC or anything like that. It's not our thing.
That being said, on the access to information file, we've also had many run-ins with the government. We've had run-ins with the Mulroney government, the Chrétien government, the Martin government, and we continue to have run-ins with Harper government over access to information issues.
Most notably, we were recently threatened with legal action by a former political staffer in the Harper government, as part of a complaint that we waged in conjunction with Newspapers Canada and the B.C. Freedom of Information and Privacy Association relating to the obstruction of an access to information request.
We are a consumer of information, a requester of information, and a believer in access to information and freedom of information. We have a very curious gentleman in our office, who spends a good portion of his week sending access to information inquiries. In fact he just emailed me to say there are 41,432 employees at the Canada Revenue Agency. That was today's revelation from an access to information request.
He's made a half a dozen or so requests about the operations of the CBC, and they've essentially been turned down. He's appealed to the Information Commissioner, and the Information Commissioner has ruled in his favour. CBC has refused to respect the wishes of the Information Commissioner.
This has nothing to do with the commercial interests of the CBC or their programming or their journalistic sources, or anything. They're just being ornery and contrary-minded in refusing to honour the spirit of the access to information law.
When the CBC adopts a policy of this nature, we don't believe it provides much encouragement to the rest of the government to honour the access to information laws. We think it sets a very bad example.
I think the other thing that our supporters find profoundly offensive is whole practice within government of government ministries and departments litigating against the Information Commissioner, this whole idea of spending taxpayers' money to go to court, tying up the resources of the Federal Court of Canada and the resources of the Information Commissioner, and spending public funds to have an internal battle between different government agencies.
Ideally, the legislation should be clear enough that everyone in the federal government can follow it, and publicly funded agencies should be able to.... The legislation should provide for a process whereby these issues get decided without resorting to lawyers, litigation, court cases and court costs. It's a big waste of money.
If I could continue, Madam Chair, I have been in Parliament now for seven years and I have not seen a committee approach a study in this particular manner. It is quite a surprise to me, actually. I have heard some inklings of this through reading newspaper reports, but it's quite surprising to be in a dynamic where a witness makes a comment and a member of Parliament is restrained from following up on that comment.
Here we have a witness who has mentioned a run-in with government. It's absolutely appropriate, Madam Chair, when you have a witness who has raised concerns about how this government is treating access to information, and quite relevant, to compare those with the concerns that were expressed about the CBC, and where, clearly, the CBC has responded. Both in previous testimony before this committee and in testimony we've received since, it's clear that the CBC has been dealing effectively with following up on the unprecedented numbers of access to information requests they've received from Sun Media.
We now have a witness who has raised other concerns regarding run-ins with the government on access to information. In three particular areas—the Prime Minister's Office, Industry Canada, and Environment Canada—we've seen a systematic stalling and, often, a refusal, around access to information requests.
I have followed up on the witness's comments about run-ins with government. I will ask him if he could compare his concerns about the CBC to concerns that he has raised with the government in the past, which, as you know, Madam Chair, is perfectly relevant. He could compare the concerns about CBC access to information requests--which they are responding to--with the government's refusal to respond to access to information requests or where there has been no movement.
You didn't think the flatscreen TVs might be more energy efficient? I'm kidding.
One of the things that really concern me on this, and I think it concerns the Taxpayers Federation, is that right now we have the CBC, not the Information Commissioner.... The act is written that the Information Commissioner should determine whether or not section 68.1 of the act applies to access to information requests to the CBC. The CBC is actually making the argument that, no, they will determine what they should give to the Access to Information Commissioner in the first place. The court actually determined that, no, the Information Commissioner was entitled to do that and would determine if section 68.1 applied.
That's the way the act is written; that's what the ruling says. But what we are actually seeing now and what I think the Taxpayers Federation is concerned about is the CBC, publicly funded, fighting the Information Commissioner, publicly funded, in the Federal Court, publicly funded, and that taxpayers are funding the whole thing.
Doesn't it sound outrageous, as a taxpayer?
To be clear, you think they should be handing over this information to the Information Commissioner, and she should be determining whether it's 68.1 or not.
What do you think of section 68.1 to begin with? Do you take a view on it? Do you think there should be a set-aside when it comes to taxpayers' money in this regard?
We're not talking about the Privy Council. That's what Mr. Julian was bringing up. He'd like to have all the information from the Privy Council. The court said it's appropriate that it's not actually subject to access, and I think we all understand there are some pieces of information that simply cannot be....
But what we are talking about is the expending of taxpayers' dollars. How do you think section 68.1 should be applied? Should there be a section 68.1 cut out? And if there is, should we narrow it down or better define it so that groups like you that have made requests with respect to the spending of the CBC.... I understand some of the requests are for the expenditures on meals, fleet costs for trucks, salaries, and so forth. These things are not programming or don't deal with journalistic integrity. We're not asking them to reveal sources. Correct?
Is there a way you would suggest we better define this?
As a general principle, it has been discussed, and other witnesses have brought it up, and I'd be curious to see whether or not the Taxpayers Federation has a particular stance on this.... We've heard through lines of questioning and so on that the difference that sets the CBC apart from other broadcasters is the fact that they receive a direct public subsidy from the taxpayers of Canada, as long as they also provide a mandate that is different from that of the other broadcasters. We've heard from the regulator this morning.
At the same time, though, we've also heard from other witnesses who say that in some form or another, whether it's through a tax credit or a check-off fee for subscribers, as the regulator said this morning, that money is collected or given as a tax credit to the industry in some form or another. Other witnesses have said that because of that, all public or private broadcasters should be subject to access to information on the same playing field.
What's the stance of the Taxpayers Federation on that? Do you think that if somebody receives a tax credit, they should somehow be subject to access to information? Or should access to information stick to a level where there are direct taxpayer subsidies or cash transfers or cash injections directly from the Receiver General to their accounts?
Once CBC became subject to the provisions of the Access to Information Act, it received 434 requests from a single requester in the first two months. Considering that, could we not assume that CBC was overwhelmed by requests and that, wanting to cooperate, it tried to do what it could?
Today, we can see that the backlog has mostly been eliminated and that additional resources have been put in place. Earlier, Mr. von Finckenstein said that there were no cooperation issues with the people from CBC when he tried to obtain information.
So, don't you think we could give CBC the benefit of the doubt, as it seems that it was targeted by a direct competitor who wanted to overwhelm it with hundreds and hundreds of requests?
Thank you very much, Madam Chair, and thank you, Mr. Thomas, for coming here today.
First, to respond to some of the things that I've heard from our NDP colleagues, it really isn't the time to respond. It's the issue, it's the fact, as you say, they are refusing to comply with the requests. That is a really significant point.
Earlier this morning we talked about some of the funds that have been going to the CBC. From the cable and satellite distributors, the CBC has received $34 million from the particular fund they contribute to. That's another area from which money is coming into the CBC. Again, at the same time we look at certain situations where there have been bonuses that have been paid to certain executives. They are not the Tommy Hunters, they are not the Don Harron/Charlie Farquharson people that were in on the bonus round.
So I guess my question is, would something such as bonus pay coming from those funds be an ATI request, as far as your organization is concerned?
Thank you for the question, Mr. Dreeshen.
I think it goes back to one's world view. Regarding these bonuses for executives, creative personnel, and staff, if you're trying to keep a talented programmer, an idea person, a creative person, or perhaps a star revenue producer, someone who brings in the advertisers, someone who's critical to the process, that's hardball show business. So regarding the CBC, as Strombo said at his big party at the Toronto International Film Festival, is show business, this is big money, this is hardball. And the CBC deploys its financial advantage to gain a commercial advantage.
If you embrace the idea that this is a sensible model, then you obviously have to hire hardball creative staff, hardball money generators, and you have to keep the information proprietary and secret, and you have to run it like a business or it will end up costing even more than $1.16 billion.