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Standing Committee on Access to Information, Privacy and Ethics



Tuesday, October 18, 2011

[Recorded by Electronic Apparatus]



     Good morning, ladies and gentlemen. I will call this meeting to order. Pursuant to Standing Order 108(2), we are studying the access to information dispute and the resulting court actions concerning CBC.
    Our first witness from the CRTC is Konrad von Finckenstein, the chairman.
    Mr. von Finckenstein, please go ahead.


    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.
    Thank you.
    Thank you very much.
    We will go to our first round of questioning for seven minutes.
    Mr. Angus, please.
    Thank you, Madam Chair.
    Mr. von Finckenstein, I welcome you to our committee. I'm feeling a little let down, because over the years you and I have had many great discussions and battles. I said in the media and I'll say it again to your face that I disagreed with you on many of your decisions, but I have always respected the fact that you're an independent thinker, and I look forward to a good, healthy round of discussion today.
    So welcome to our committee.
    Thank you.
    I don't know if you'll ever invite me out for a coffee in retirement, but I hope you will think of me once in a while and enjoy your retirement.
    Who knows, I may appear before you advocating another interest some time in the future.
    Exactly. I look forward to that.
    Mr. von Finckenstein, we are looking at the access to information request to the CBC, because my Conservative colleagues have rightly pointed out that taxpayers' money is invested and taxpayers should get benefits. So there's a question about the CBC.
    Taxpayers pay millions to the private broadcasters, as you well know, through the Canada Media Fund and the local programming improvement fund. There are hundreds of millions in benefits from section 19.1 of the Income Tax Act. It has created a protected market free from competition. Of course, there are hundreds of millions further in films and documentaries that are often shown on television. So the issue of transparency for taxpayers is vitally important.
    Would you agree that some information requested from a private broadcaster or a public broadcaster should not be given out because the information could be expected to prejudice the competitive position of a third party?
    Are you talking about private broadcasters?
    The act makes it quite clear that where you have information belonging to third parties and they've claimed confidentiality, you have to respect that. For instance, as I explained, private broadcasters file all sorts of information with us, and they claim that the release of it would be harmful to them. On the other hand, we need it in order to see whether our policy works with them and has the desired effect, etc. So we respect their wishes and don't disclose things where they care. It's usually the case, as you know, that we partially but not totally redact a document. They will say that we can leave certain numbers, but that others should be blacked out.


    I'm looking at a letter you sent regarding a request that was sent to you on March 19, asking for information on private television financials for the period 2001 to 2005. None of this information was released to the public, because it would possibly prejudice the competitive position of a third party. I'm surprised, given the millions that Canadians pay in, that we would be told that financial data from eight years ago was of a competitive nature and might affect a third party.
    Why was that information not released?
    It was the decision of the third party, who owns that information.
    The third party being the private broadcaster who refused to release it?
    If you as a requester disagree with my decision not to divulge, it's your right to go to the Federal Court and say we should divulge. At that point, I would say to the court, “Here is the information. It's under seal. I have no interest in this fight, but the private company says it's commercially sensitive to them and cannot be released. You decide.” And if the court says to release it, I will release it. If the court says they are entitled to keep it private, we will keep it private.
     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?
    Let's take it one by one. First of all, we're not talking about taxpayers; we're talking about subscribers. The money from the LPIF comes from cable and satellite subscribers. It's a percentage of the gross revenue made by cable companies and television companies.
    That is set by the taxpayers of Canada.
    Well, if you want to....
    Obviously, there are taxpayers--
    We've established a public frame to support private broadcasting, and I think that's excellent. But it's a fairly straightforward question that Canadians would want to know about. If I were in Barrie, and the local television station was hanging by the skin of its teeth, I'd want to know if the station was actually putting the money there. And I'm being told that the private broadcasters are saying it's none of your business. That's unaccountable.
     How would you suggest we get that information? Do you say we have to take it to court?
    I've just explained to you that we administer this fund. We make sure it is used for the purposes set out for it. I went through the criteria we used and I explained to you the reports they have to file each year, what they have to contain, etc.
     Now the company takes a position. If I were to make that position public, you could do some reverse engineering and actually figure out exactly how profitable that company, that local station, was or was not. You, as elected representatives, are entitled to know that. What they don't want is their competitors to know and then to use it to their competitive advantage.
    That's an excellent point, but—
    I do not take any position on whether this is justified or not; I just take the information. Knowing that they furnished it to me in confidence, I respect that confidence. Effectively, the challenge is with the private broadcasters. I have no issue here; I just put it in court and let the court decide.
    So if CBC is being asked questions by Quebecor, you'd say they might take a reasonable position and that it's their competitor and they shouldn't have to divulge that?
    Mr. Angus, your time is up. Thank you very much.
    We'll now turn to Mr. Del Mastro.


    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?
    No, we ask for all sorts of information from anybody who's licensed. Whether it's a broadcaster or a distributor of cable content, they file it with us. Each year we publish a volume this thick called the Canadian communications report, or something like that.
    It is considered more or less the bible by the industry, that is, as reliable data of what's happening in the industry, including how many people are watching, what they're watching, how much they're spending, the times, and how the audience shifts, etc. It's all aggregated so it does not in any way violate confidentiality, but it gives us an overview and gives the whole world an overview of what's happening in the Canadian communications field.
    And you're building all that off the filings of the various licensees across the country?
    Thank you.
    I want to point out something else, because it appears that we're often talking about competitors in the Canadian market. First of all, when we speak of CBC and anyone else, I think that when we use the word “competitor” we're somewhat misusing it. You recognized a difference between the CBC and the other broadcasters when you undertook the hearings on value for signal, when you determined that as a public entity the CBC should not be seeking value in that fashion since the public is already contributing toward that.
    Could you expand on that a little? You did recognize there was a difference.
    I'd like to deal with the first point about competitors. They clearly are competitors in trying to attract eyeballs. And also, since the CBC lives off advertising for a large part of its money, they compete for advertisers. When we had the value for signal hearings, it was a question as you know of the whether there should be fee for over-the-air signals that are being retransmitted by cable television. Right now they retransmit those signals but they don't pay for the content; they pay for the content of specialty channels. We said that was really for the marketplace and that they should be able to negotiate it. The broadcaster should be able to withhold the signal, or the cable company could refuse to carry it, and let them work it out. That's what we suggested. This has been challenged and is before the courts right now.
    We did not apply that to the CBC because the CBC is a public broadcaster; it's supposed to fulfill a public mandate. Therefore, withdrawing it from the public seems to be counter to the mandate. We also didn't think the CBC would have much negotiating power in this thing. We felt that the CBC was, after all, a crown corporation mandated by Parliament for a specific purpose. If it needs funding, that funding should come from Parliament; it should not come through some sort of negotiating rights that we establish.


    I agreed with your finding on that.
    You established six criteria: evidence of audience success; viewer satisfaction; increases in local advertising revenues; increases in original local news stories; the number of local news stories that are picked up nationally; the expansion of news bureaus; and increases in the quantity of the local programming broadcast. These are what you're seeking to see from stations taking advantage of the LPIF program.
    Has CBC demonstrated these things, or have they just given you an accounting of where they spent the money?
    CBC, like everybody else, has given us the costs addressing these points. Everybody does it slightly differently, and we have to evaluate.
    This LPIF program, as I mentioned, was born in the middle of the financial crisis, when there was a danger of many stations going dark. It's a temporary program. We are going to re-evaluate it this coming spring. As part of that evaluation, we're going to look at all of these things that people have filed in order to determine, first of all, whether the information is meaningful; and if it is, whether in light of it, it makes sense to continue the fund, or whether the fund should be changed, abolished, or.... It will just be to get a feeling for what is happening in local programming, because that's really where the numbers....
    One of the reasons that we need accountability and financial transparency in this matter is that some, I suspect, will come before the CRTC to argue for a larger LPIF. I suspect that BDUs will come before you and suggest that it's not required at all in some cases. The decision that the CRTC must make will be based on all of the data that you're presented with, and you'll review it in its entirety.
    Thanks, Mr. Del Mastro.
    Thank you.
    We'll now move to Mr. Andrews for seven minutes, please.
    Thank you very much, Madam Chair.
    Welcome to our panellists this morning.
    Since we're talking about access to information and freedom to access that information, and since you mentioned that if you're asked for something that you cannot divulge, you'll send it to the courts, I would ask the following. If you were to change any of the access to information laws to free up some of what you see yourself as needing to report, what changes to those laws would you recommend to this committee to improve or grant more information when requested?
    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.
    So you would like to see someone else take that out of your responsibility?
    It is out right now: as I say, it is with a court.
    You asked me how it could be improved. I think procedural improvements could be made and the process could be sped up. But the basic principle that a third party decides is, I think, correct.


    Just at the end of Mr. Del Mastro's questions, you were talking about the LPIF and about how you're going to re-evaluate and re-calculate it. Could you explain that a little? How much more time needs to pass? Is this something that's going to carry on for two or three years?
    I'll let you explain that first.
    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.
    In your statement you talked about the indicators that document whether the funds have been put to good use. Are these the only indicators, or are they just a summary? How many indicators do you have?
    These are the ones on which we ask them to report. Obviously, when we have a hearing, people can bring forward whatever evidence they have to show that local programming either does or doesn't work.
    When you review whether they're meeting these indicators, can you release the information showing that they've met certain indicators, but not another one? Or is that information also not disclosable?
    It's exactly as I said before. Some people may claim it's confidential, in which case I won't release it. If we get a request, and if it has been filed with us..... If it's not filed as confidential, obviously it's public, and it goes on our website. If they file it with me as confidential information, we'll treat it as confidential. If we then get an ATIP request, we'll go through the procedure I just outlined.
    Thank you.
    We'll now go to Mr. Butt for seven minutes, please.
    Thank you, Madam Chair.
    Welcome. Thank you very much for being here. This is my first time meeting you folks. I really appreciate your being here.
    To start with the CBC, I hear a couple of different terms, including “public broadcaster” and “state broadcaster”. How would you define the CBC using either one of those terms? And what is the definition, or is there a difference between being a public broadcaster or a state broadcaster?
    How do you see the CBC?
    I think the terms are basically synonymous. A public broadcaster is usually owned by the state. You could have a public broadcaster that is not owned by the state; that's why there is the slight distinction. But in this country we use the terms synonymously. I think “public broadcaster” is a better term, because “state broadcaster” has the connotation that you are pumping out the message of the state, as is done in some non-democratic countries. So let's call it a “public broadcaster”.


    Does the CRTC look at the CBC or treat the CBC differently, as one of its clients or entities, from how it treats privately owned broadcasters? Is there a higher level or a different level of accountability or oversight that you would have for a public broadcaster versus a private broadcaster?
    First of all, the Broadcasting Act has a specific section devoted to the CBC, and we obviously have nothing to do with the CBC's financing or CBC programming. But there are certain objectives that are set out for the CBC in the act, and there are all sorts of public interest groups that appear before us, saying, “Make the CBC do that.”
    A perfect example is that the CBC has a responsibility for official languages throughout the country, and they are specifically responsible for official minority languages. CTV doesn't have that responsibility, and TVA doesn't have it, etc. CBC has it, and that's why we have an English and French CBC, etc., and also have French CBC in Alberta, for instance—which probably is not a financial success, in the same way that the English CBC in Chibougamau is probably not. It's available; that's part of the mandate.
    There are all sorts of special obligations that the CBC has, and we make sure that they live up to them.
    Have you experienced difficulties with the CBC when you have requested information from them, when you've requested compliance from them on certain issues, and when there have been rulings at the CRTC that perhaps the CBC didn't like and perhaps was avoiding implementing within its organization? Or have you generally had a cooperative, helpful relationship with the CBC?
    I'd say our relationship with the CBC is like that with all other licensees: essentially they go along. Obviously, they challenge you when you take a position they disagree with. They try to convince us of the error of our ways. Sometimes we have issues in terms of compliance, when we think they should be doing this and they are doing it slightly differently, and we have to call them to account. But I would not say the CBC is any way different from any—
    So they don't take you to court and refuse to disclose information that you've asked for? They cooperate with you when you ask for things?
    The issue that we're dealing with on this committee is predominantly the CBC's argument that section 68.1 of the Access to Information Act allows them not to disclose certain information to the Information Commissioner.
    Under section 68.1, the definition of that information is that which relates to it “journalistic, creative or programming activities”. Given your background, sir, and your immense knowledge in this area, can you give me examples of areas that could be considered journalist programming and creative activities that might lead the CBC to make an argument that they should not release information to the Information Commissioner?
    As you know, I used to be a judge on the Federal Court, so I look at this through that judicial focus. I read the judgment, and it is a disagreement between the CBC and the access commissioner on how to interpret that section, especially on whether she is entitled to look at documentation in order to determine whether they properly claimed the exemption or not.
    The court said she is and it's now under appeal. The court also said it was very poorly drafted and not a model of clarity. There is clearly a dispute here, and the easiest way to fix it is to establish by legislation that either yes, she can look at those documents, or no, she can't. There is a legitimate judicial dispute here. I am not taking any position here. I can just see that parties can differ on that interpretation, and that's what we have courts for: to resolve it.
    But you would agree with me that it would be fair that the Information Commissioner should be making that determination herself. I'm sure you would agree, as an independent body, that you should have the right to look at documents and make a determination as to what you would disclose publicly and what you would not disclose publicly, what you would investigate or what you wouldn't investigate. Why would we not have the same faith in the Information Commissioner to do the exact same thing?


    Mr. Butt, that's for you as a legislator to decide. You can say, “The act does not apply, period,” in which case it doesn't apply; or you can say, “The act applies, but this information can be withheld, provided A, B, C, etc.” It's one way or another.
    Unfortunately, the section in dispute here has been drafted in such a way that you have a double exemption. The act does not apply, except it does apply, and that's given rise to the dispute in the interpretation. It's really a question of which approach you want to do. We have some areas where we clearly say that access to information does not apply, and then the commissioner can say...and there are others where it's the other way around, and there's exemption, but you have to justify it.
    It's your choice to decide which way you want to go.
    Thanks very much, Mr. Butt.
    That finishes our first round. We will now enter the second round, for five minutes.
    We'll go to Mr. Boulerice, please.


    Thank you, Madam Chair. I want to thank our witnesses for joining us this morning.
    Good morning, Mr. von Finckenstein. You may not recall, but we have met many times at CRTC hearings. I was lucky to be in attendance for the presentation of Canadian Union of Public Employees' briefs.
    I just want to ask you some questions about your recent statements. According to you, it is acceptable for a private broadcaster, to whom an access to information request has been submitted, to turn to the Federal Court in order to prevent the disclosure of certain information that may be seen as strategic and competition-promoting. If that's good for private broadcasters, do you think that CBC's position is reasonable? We are talking about the same resources, same exemptions and same authorities. CBC is trying to protect itself against disgruntled requesters who are also its direct competitors.
    Let's imagine that we had information on CBC, and the corporation told us that the information was confidential. We could be talking about information on advertisement, for instance. That's an area where CBC is in competition with the private sector. If someone requests that information, we consult CBC. If the corporation asks us not to disclose that information because it would affect its competitiveness, we refuse to disclose it because CBC considers that information to be confidential. If the requester takes the matter to the courts, we would follow the procedure I just laid out for you. We would provide the requested documents to the court under seal, and the court would decide.
    I would like to take matters further. Section 68.1 of the Access to Information Act, which allows for the exclusion of information disclosure and required responses, focuses especially on matters related to information, and creative and programming activities. Information basically means journalistic activities. You have often heard from journalists' associations that talked about their professional issues at various hearings you have held. We do not know what the requests are and what objections CBC has.
    If we're talking about journalistic activities, that is, notes taken by a journalist, recordings or full interviews, do you not feel that would be a strong enough reason for CBC not to disclose information related to journalistic activities of another entity or, even more so, of a competitor?
    That's obvious, as that is CBC's position. However, as you know, there is an exception to the exception. That's the problem. You have read Judge Baudoin's decision. He stated his reasons. We will see what the court of appeal has to say about that. The principle is clear: the problem is due to the fact that there is an exception to the exception.
    Thank you, Mr. von Finckenstein.
    I want to discuss another element of your report. I'm talking about the Local Programming Improvement Fund. A little earlier, there was a lot of talk about public and private broadcasters. Last Sunday, Denise Robert, who works in the film industry, appeared on the French talk show Tout le monde en parle and said that there would be no Quebecker or Canadian cinema without public funding. We feel that Canadian television would not exist either without public funding. I think that public funding, along with other kinds of funding and tax credits, proves that the so-called private broadcasters are not all that private after all.
    I also want to bring to your attention the study on independent production by UQAM's Professor Naciri. After his study was published, he told us that independent or private producers cover only 3% of the total cost of the production they then sell to a broadcaster. To what extent do you think private Canadian broadcasters are quasi-public?


    You are asking for a political opinion. Clearly, most of Canadian television production has public support, be it through our tax or subsidies system, funding, or other. However, I think that saying that we don't have any private productions or broadcasting is an exaggeration. We are talking about profit-based companies. They take advantage of the existing rules, but they are indeed private companies. I think that there's no doubt about that.
    As for the Local Programming Improvement Fund, we have not made the distinction between a public broadcaster and a private broadcaster because, for Canadians, that makes no difference. They want to have local information. They have the right to that information, and we want them to get it, through either a public or a private broadcaster. It makes no difference. That is why both types of broadcasters have access to that funding.


    Thank you very much.
    We'll now go to Mr. Carmichael for five minutes, please.
    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.
    You would agree, though, that the commissioner should have her authority in this case to get the information she requires?
    If that's your wish to do it that way, that's fine. You, as the legislature, makes a value judgment. If you say, yes, that you feel more comfortable with that, then you do it. If you say that you are prepared to rely on the judgment of the broadcasters to decide what is journalistic, that it's something that's so sacred it shouldn't be touched, then you say it doesn't apply to anything that is beyond....


    It strikes me that within section 68.1, where we have the three words that you brought up earlier—journalistic, creative or programming activities—the challenges are, where do hospitality expenses go, where do the costs of running a fleet of vehicles go? If somebody wants to know where those are included, and yet these expenses are being buried in different pieces of the definition and you don't have access, then you lose all access to accountability.
    No, I appreciate why it was drafted and what they were.... I just think they tried to avoid the underlying decision, which is now before you. Should the exercise of this discretion be subject to review by the commissioner or not? It was a funny way of drafting things; I've rarely seen something that says it doesn't apply except it does. It's a strange way of drafting things.
    As I read the history of this whole process and have tried to understand it more clearly, I was frustrated reading about, for example, the delays in the last four years. They talked about the 370-odd access requests that were made in the first year, and then the 100-odd ones carried over to the second year, which further complicated the burden of trying to respond to the early ones, and it goes on and on. Then with the accountability requirements plugged in that they have to complete those requests within a year.... And even then the CBC didn't meet those timelines.
    My question is, who should be the clear adjudicator in ensuring that accountability be held in place? Is that something the CRTC has access to?
    A very quick answer please.
    No, that is always for the commissioner of access to information. This is really her bailiwick.
    Thank you very much.
    We will now go to Ms. Brosseau, please, for five minutes.


    I want to thank the three of you for joining us today.
    During your mandate, you said that the four central principles that have been key for you were transparency, predictability, fairness and timeliness. Those principles are also important to us because we are members of the Standing Committee on Access to Information, Privacy and Ethics.
    Could you give us more details on the process you use to determine which documents should be excluded? You say that it's like an exception to an exception.
    Regarding CBC, section 68.1 of the act states the following: "This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities [...]". That's clear. In such cases, the act does not apply.
    It does not apply.
    There would be no issue if the sentence ended there. However, there is another exception. It says: "[...] other than information that relates to its general administration". That means that the act does not apply to journalistic activities, but it does apply to information that relates to its administration.
    The issue for the information commissioner is how to check that. Requested journalistic information is not related to administration. However, to make sure of that, she must check the information. The people at CBC say that the act does not apply and that it is up to them to make a decision, which must be accepted. They made the decision and asked that it be accepted, saying that we don't have that kind of jurisdiction. Since the matter involves journalistic information, the act does not apply.
    As I was saying, that's a way to proceed I have never seen before. It is very complicated. It's easier to stipulate that the act does not apply to CBC, or to set out an exception for CBC, while allowing the information commissioner to check. That's really what the issue is. There are two possibilities. There is a case before the courts, and there is now an appeal of the decision.


    Thank you.
    So you ask public and private organizations for information. When you receive the information, do you hold on to it for a certain period of time?
    Yes. All information provided to us is stored for a certain amount of time before it is archived.
    How long do you keep the information? Do you store it for 1, 5 or 10 years?


    Would you like to answer?


    I think that we are required to store information for seven years. However, if the information is important, we store it for longer.


     Thank you very much. You just have three seconds left, so we'll move on.


    Thank you very much.


    We'll move on now to Mr. Dreeshen for the remaining time of about three minutes.
    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.
    First of all, I apologize that Portage la Prairie is shown as being in Alberta. It's clearly in Manitoba. But we know where it is and treat it as such.
     I only wanted to make sure the money was in the right spot, that's all.
    In fact we have a formula for distribution, which is public. Mr. Sheppard will walk you through the details.
    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.


    Mr. Del Mastro, did you want to...?
    Yes, thank you.
    I have a very quick question. The crux of the problem here that's facing the folks in the court battles is that the CBC is determining whether section 68.1 applies, not the Information Commissioner. This is not the way it's supposed to work. Regardless of how the wording is put in the act, the act clearly stipulates that it's the Information Commissioner who is supposed to apply the principles of section 68.1.
    I have a second question for the CRTC. The CBC ombudsman reports back to the CBC, not the CRTC. Do you think that's appropriate? Should we be taking a look at that and determining whether the ombudsman should be reporting back to the CRTC as the regulator, instead of directly back to the CBC?
    Now you're talking about the governance of the CBC and there are all sorts of issues that you can look at. This is certainly one that you should look at. He reports right now, I believe, to the president of the CBC. For instance, he might have been reporting to the chairman of the CBC rather than the president, or he could report to us, etc. There are various models that you can adopt.
    Thank you very much. Our time is up for this portion of the meeting.
     I want to thank Mr. von Finckenstein, Ms. Laizner, and Mr. Sheppard very much for appearing as witnesses before the committee.
     We will now suspend for three minutes while we change our format.
    Thank you.



    Okay. We will call the meeting back to order now.
    Welcome, Mr. Thomas. We thank you for coming this morning to appear before the committee. We will begin with an opening statement from you, please, sir.
    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 Minister of Finance 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.
    Thank you for your opening remarks.
    We will now go to questions and answers, starting for seven minutes with Mr. Julian, please.


    Thank you, Madam Chair.


    Thank you very much to our witnesses for coming in today.
    Mr. Thomas, you referenced your run-ins with the government on access to information requests. We're certainly aware of a whole number around the Prime Minister's Office refusing the Information Commissioner's access to information requests on Industry Canada and Environment Canada. This refusing of access to information requests has been systematic with this government. I'm wondering if you could elaborate a little more on these run-ins and difficulties you've seen in regard to access to information with this current government.
    Point of order.
    Mr. Julian, I have to apologize. I'm--
    Excuse me, Mr. Thomas, but we have a point of order.
    Mr. Del Mastro.
    We may well get into broader studies at some point. Mr. Julian may even wish to attend them.
    Perhaps you could remind Mr. Julian of what the topic is today so that he might seek answers to questions that are relevant to the topic at hand today, Madam Chairman.
     Mr. Julian, we are here discussing the court actions concerning the CBC and issues related to that, so please, I'll ask you to keep your comments relevant.
    Madam Chair, I have to disagree with you. We've obviously had a witness who has just made a very clear comment as a witness before this committee. It's quite relevant.


    Mr. Julian, we're not here to debate that issue. We are here to discuss this issue of the court actions concerning the CBC. We will keep our comments relevant to that.
    Do we have another point of order?
    Well, I suppose what I would argue, Madam Chairman, is that we need to keep to the topic at hand. We do have a second study, where we are looking into what I believe are violations of the Elections Canada act by the NDP, but we are not here to discuss that today.
    That's very true. We are here to discuss the court actions concerning the CBC. We will try to stay on topic.
    Mr. Julian, I will remind you once again that this is what we are discussing today. Thank you.
    Madam Chair, I'm following up on the comments of the witness, and I have been--
    If you can relate them to the study at hand, that will be fine.
    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.
     Well, our experience is that CBC is among the worst. It just seems to have a blanket disregard for the legislation and it ignores the directions of the Information Commissioner, who is a non-partisan officer with no axe to grind.
    It went to court. It lost in Federal Court and now it is going to the Federal Court of Appeal. So it seems to have an attitude that it just doesn't want the legislation to apply to itself at all.
    Mr. Thomas, can you compare that to the PMO, the Prime Minister's Office, which went to court to stop the Information Commissioner from getting that information? How do you compare the two, or do you see the two as equally guilty?
    I haven't studied the PMO issue. It related, I believe, to personal agendas and things of that nature. It wasn't our specific access to information request. We didn't ask for the Prime Minister's agendas and stuff, and I didn't specifically follow that case.
    Now, Mr. Thomas, if I can continue, your organization sent a letter to the chair of this committee regarding an investigation of interference around released information from a minister's office. At the time, the Canadian Taxpayers Federation said, “Canadians need to know if this is the case, and the Commons committee on ATI, Ethics and Privacy should hold hearings into this critical situation.”
    Does that continue to be the point of view of the Canadian Taxpayers Federation, that the ethics committee should be sitting and looking into these pretty egregious violations of access to information requests and process? Is that your view, that the ethics committee should be holding hearings on that?


    Yes, and we called for that publicly, along with Newspapers Canada and the B.C. Freedom of Information and Privacy Association. The individual in question threatened us with legal action. We're still waiting for his writ and would welcome the opportunity to litigate that with that particular individual.
    In fact, our national communications director made the point that if that individual guessed we were going to be intimidated or that we didn't have deep enough pockets to face him down through a lengthy and expensive litigation process, then he guessed wrong, because we take this stuff very seriously.
    Do you see this as a SLAPP suit threat from representatives of the government, or employees of the government?
    I'm not a lawyer, so I wouldn't know how to characterize it, but we welcome the opportunity to meet him in court, if that's what he wants to do. We were disturbed that no one has been prosecuted under the access to information laws. We believe that when there are egregious examples of government employees interfering unlawfully with freedom of information, then they should be prosecuted and should be dismissed from their positions and jailed.
    Thank you for that.
    I'll remind you once more, Mr. Julian, to keep your comments relevant.
    Continue, please.
    Thank you very much, Madame Chair. This is quite interesting.
    And I think the Canadian public finds it quite interesting.
    Mr. Thomas, you have raised egregious examples of violations of access to information by the government and government employees. I think it's very relevant that you bring this to the committee. You have also encouraged this committee to actually sit down and address those issues, those egregious violations of access to information laws by this Conservative government. I think it's important testimony that you have brought forward today.


    Madam Chair, we have seen some members of this committee engage in a kind of a witch hunt when it comes to CBC. Yet we now see that violations of that kind are committed regularly by the government.
    I would like to know whether our witness finds that some government employees have used intimidation tactics and perhaps threatened his organization with legal proceedings if the government's violations of the Access to Information Act were brought to light.


    Thank you very much, Mr. Julian. I will allow the witness a very short answer.
    The time is up, so make it a very short answer, please, Mr. Thomas.


    I think that, in this case, the employee is no longer with Canada's public service and that the legal commitment between him and our organization is private.


    Thank you very much.
    We will now go to Mr. Del Mastro for seven minutes, please.
    Thank you very much, Madam Chairman.
    Madam Chairman, I've always found in my experience that when an individual avoids speaking to the question at hand, it's because they're uncomfortable with the question at hand. So perhaps Mr. Julian is just uncomfortable asking the tough questions. But I'm not.
    So, Mr. Thomas, you indicated that you've made requests specifically to the CBC on behalf of the Canadian Taxpayers Federation, but they haven't responded to the requests—any of them?
    We finally asked them to provide us with the name of their CEO and the address of their head office.
    You could have got that off the Internet.
    We could have, but we wanted to make a point.
    Okay, very good.
    Your members, if I'm not mistaken—and I think I am one or used to be one—tend to advocate a couple of things. One is for lower taxes, but the other thing is for responsible use of tax dollars. Is that accurate?
    That is correct. That is one of the major functions of our access to information applications, following up on information we get from our supporters and also from government employees. For example, in Manitoba we heard they were getting big flatscreen TVs and violent video games in detention centres for young offenders, and that bothered an employee. We followed up with access to information. We proved that this was in fact going on and had the practice ended.


    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?
    Yes, and in my opening remarks I addressed that.
    I think it's unconscionable that government agencies all funded by the same people are using the courts to pursue internal bickering. We believe that the CBC should honour the access to information legislation. We believe that should be made clear to the directors of the CBC. And if they're insubordinate in that regard, then they should be replaced and they should direct the CEO to uphold the legislation.
    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?
    I think there is a fair amount of common sense on the exemptions. Nobody thinks the public should be invited to CSIS security briefings, nobody thinks the public should get to view military exercises, and nobody thinks the public should sit in on cabinet discussions or that the confidential advice to cabinet should be public. I think there's a broad consensus among all who have been involved in government that there is a whole list of things--police investigations, confidential information, etc.--that is not public. I think everybody is willing to give the CBC a pass on disclosing its journalistic sources, for example.
    I don't think anybody figures that CTV should get to look at CBC's programming schedule ideas. And I think that if the CBC had just stuck to those reasonable things, then they wouldn't be--


    But if we wanted to know how much, for example, CBC spent at the Toronto International Film Festival on its booth or on its film festival evening when it hosted an event, do you think that's something that could be public? Or do you think that's something that would relate to programming and artistic exemptions?
     CBC has advantages and disadvantages. One of the advantages it has is the $1.16 billion head start it has on its competitors by way of public subsidy. That's a big advantage. The entire budget for some of these other channels is like a rounding error on the CBC's budget. You could run--
    Thanks, Mr. Del Mastro.
    We will now move to Mr. Andrews.
    Welcome, Gregory.
    How many requests to the CBC has the Canadian Taxpayers Federation made using freedom of information?
    About half a dozen.
    Over what time period?
    The last two or three years, I'd say.
    We've been told that in 2007-08, there were no requests from organizations; in 2008-09 there were only four requests from organizations to the CBC; and then in 2009-10 there were seven requests from organizations, all representing less than 3% of the requests that have come in.
    You said half a dozen?
    How many of those requests have not been fulfilled?
    I don't believe any of them have been fulfilled.
    In those half a dozen requests, what information were you requesting?
    Well, for example, we sent them the roster of executive members of the Friends of Canadian Broadcasting and asked CBC if any of those people were on the CBC's payroll or had received public contracts, or if they were in any way beholden to the CBC. And they refused to answer. We appealed to the Information Commissioner. The Information Commissioner ordered them to answer and they still refused.
    That's one request. What were some of the other requests?
    There was a Radio Canada documentary on the Nordiques—and here I should mention that we are actively opposed to the idea of spending public funds for a hockey arena in Quebec City—that coincided with some political activity in Quebec City and we thought the timing was suspicious. We put in a request relating to the costs of that documentary program and they refused to answer it.
    In that case, you don't think that goes to journalistic integrity?
    We just want to know what it cost.
    Would you have any problem tabling your requests to this committee? I'm finding it frustrating that we hear about all of these requests that have been denied, but I don't think we've seen what exactly we're talking about. I know a lot of the stuff is before the courts, but could you table for the committee the half a dozen requests you've made to the CBC, so that we could look at what exactly has been denied?
    We are just like any other research organization or your caucus researchers. After you hit your head against a brick wall and you realize that they're never going to answer any of the requests, you don't bother filing them. We could have filed 100 requests and had all 100 turned down.
    In fairness to the CBC, they don't turn down all requests.
    And in fairness to the CBC, we have had very public scraps--very nasty, ugly public scraps--with the government over its access to information. We were invited to appear here. We didn't apply to come here and dump on the CBC today; we were asked to come and share our experience. We haven't made a big point of broadcasting what our experience has been, so whoever invited us couldn't have known what our experience has been.


    I think it's important that we be fair and we look at the experiences people have had with the CBC and all of these things we're talking about with regard to the CBC and freedom of information, because if you request x number and they are all turned down, or the CBC gets back to you on four and there are two that are turned down, it's not fair to cast them in the light of their having turned down all requests. I think that's important to know.
    I think when you appeal to the Information Commissioner and you get a positive ruling, and they still refuse to acknowledge it, and it has nothing to do with any of their journalistic integrity or programming or any of their exemptions, then you can draw the conclusion that trying to get information from them is a big waste of time.
    Thank you.
    Thank you very much, Mr. Andrews.
    Mr. Thomas, I think you indicated that you would be willing to circulate the ATIP request to this committee. It would be appropriate to do that through the clerk, please.
    We will now move to Mr. Calkins, for seven minutes, please.
    Thanks, Madam Chair.
    Mr. Thomas, welcome today. We're glad to have you here.
    I want to ask you a few questions quickly. I have a little bit of experience with what your organization does. I read the bulletins and newsletters that you guys put out, which helps me to keep in touch with some of the common people we both represent—you through your organization and I as a member of parliament.
     In the correspondence and feedback you receive from your membership and from donors to the Canadian Taxpayers Federation, and in response to the various surveys and questionnaires you put out, how much direction do you get from that base to look at the Canadian Broadcasting Corporation?
    It's definitely on the list of things that many of our supporters believe should be....
    Is it a top-five issue or a top-ten issue? Where would it fall?
    When I thought about this visit, I honestly didn't consult the last survey as far as the funding goes. It's up there. It's in the top twenty, I would say.
    So it's on the radar screen from the organization's perspective?
    As a result of that, the question has been asked. You've done half a dozen or a dozen access to information requests to the CBC. You've received one response—which was very generic, to prove your point. The other ones are still outstanding or pending. Is that correct?
    No, we did one and appealed it to the Information Commissioner. We won, and they still refused to comply.
     But you're not going to go through the courts or anything like that?
    No, we file hundreds of these things, and we don't specifically target the CBC. The CBC isn't a big project of ours.
    Fair enough.
    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?
    No, I think that's ludicrous. Obviously programming is a commodity that has to be paid for somehow, just like anything else, either through subscriptions or advertising.
    If a broadcaster incorporates, gets a licence, begins broadcasting, presents programming to the public, and arranges with cable providers or satellite providers or over-the-air providers, or whomever, to get the signal into people's homes, that's just a commercial transaction. I think the idea of making private citizens subject to access to information legislation is over the top.


    I would agree with you. I was surprised to hear some of this comment from previous witnesses, because virtually every business owner in this country would qualify for a tax credit of some kind or another. To have their records open to access to information requests by anybody in the public, I think, opens up a whole new can of worms.
    What does set the CBC apart from the other private broadcasters that we have in our country is the fact that they also have a different mandate. But given the fact that the taxpayers contribute on an ongoing basis to the tune of $1 billion-plus every year to CBC, and have done for quite some time, it does raise the whole question of what the public broadcaster should be using that money for and whether they should be disclosing other information.
    Do you think it's reasonable that the CBC should be providing information if they're hosting something or entertaining somebody, or if they have travel and meal expenditures? Should salaries be disclosed not only of executives but also of any celebrities, for example? What about the top-paid celebrities that may work and be on the air? Or does that cross a line in terms of competitiveness? What about boards of directors and so on? What do you think? Should that be public information, or is that going to put CBC at a competitive disadvantage?
    I think it depends on your world view. If you accept the premise that the existing model of the CBC is viable, that you should have a hybrid organization that bids on the Olympics, that bids on NHL hockey games, that competes for commercial audiences, and that runs American movies, and that it will be a commercial operation and the taxpayers will give it $1.16 billion, then you don't want to screw it up by forcing it to disclose proprietary information, that is, how much it's paying Peter Mansbridge or how much it's paying Strombo. You don't want to handicap it so that it loses in the marketplace and is an even bigger burden on the taxpayer than it already is.
    If you accept the premise that you ought to have a commercially competitive CBC, then you have to let it compete commercially. You don't go out and shoot it in the foot so that it does a bad job of that.
    I guess the broader question is whether this particular model makes any sense in 2011. You guys didn't invite me here to hold forth on that topic, so....
    Well, actually—
    Thank you, Mr. Calkins. Your time is up.
    That ends the first round.
    We'll now enter the second round.
    Monsieur Boulerice, please, for five minutes.


    Thank you very much, Madam Chair. Good morning, Mr. Thomas. Welcome to the committee.
    Before I ask my first question, I just want to say that I thought what Mr. Del Mastro said was interesting. According to him, when we try to evade a question, it means that we are not comfortable with it. I hope that he will pass on the message to the President of the Treasury Board who has been refusing to answer our questions for 130 days now.
    I want to defend CBC, since some pretty harsh things were said earlier about its cooperation. We are generally in favour of increased transparency regarding CBC, as well as the federal government. We have reservations about the journalistic activities, as we told the previous witness.
    Nevertheless, do you not find the fact that CBC, as of 2007....


    Perhaps you could slow down just a bit. The interpreters are having trouble keeping up. Thank you.


    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?


    Yes, that's a possibility. CBC may have been in a difficult situation, but I should point out that, in our specific case, we had to get the information commissioner involved.
    Thank you.
    We won our case in court, but despite that, CBC refused one of our requests again.
    Okay. You're talking about your specific case.
    The information commissioner has raised a number of issues regarding a black hole in several departments of the Conservative government when it comes to accountability and responsibility obligations. If there's time, I think that some of my colleagues will ask you questions about that. Some departments' grades in terms of transparency are appalling.
    Mr. Calkins said the following before this committee:


We've got a taxpayer-funded organization using taxpayers' funds to put up a defence, versus a taxpayer-funded office of the (information commissioner), fighting each other in a court paid for by the taxpayers of Canada.

This is not in the best interests of taxpayers.


    We agree. However, that same Conservative government fought the information commissioner all the way to the Supreme Court in order to protect ministers and stop them from disclosing certain information. We are familiar with this government's habits, one of them being its ability to misappropriate $50 million through a hidden process enabling it to distribute the money in a minister's municipalities, away from the Auditor General's watchful eye. That money was distributed without any kind of a record or paper trail to speak of. In addition, the presence of federal officials was concealed. Don't you think that, generally speaking, this government has a problem in terms of its transparency and accountability obligations?
    That's a good question.
    I think we're talking about a systemic issue here. Any political party that moves into the Langevin Building.... We need only think back to the sponsorship scandal. The Gomery Commission was created only after a decade of the previous Canadian government putting up roadblocks. Regarding the spirit of the Access to Information Act, I think that's an issue...


    Please give a brief response.


    ...of a systemic nature. It may not be a


    black hole


    It may be all the information....
    If I have understood correctly, Mr. Thomas, you think that the Conservatives are no better than the Liberals who came before them. As for transparency, are you saying that you intend to form your own political party?


    Thanks very much, Mr. Boulerice.
    We'll now move to Mr. Butt for five minutes.
    Thank you very much, Madam Chairman.
    We'll go back to the subject at hand rather than all kinds of things that are not the reason we asked Mr. Thomas to be before us today.
    I'd like to go back to the interaction with the CBC on the requests you made through access to information. Am I correct in saying they've had a compliance rate of zero percent, that they have not complied with even one of the access to information requests the Canadian Taxpayers Federation has made? Even though I think you indicated you haven't made many requests, they are still at zero. Is that correct?


    We've had some turnover. Our research staff turned over two or three years ago.
    We don't keep elaborate records on this. As I said, we make hundreds of these applications. We've made very few to the CBC.
    To give you an idea, I think the CBC has over 7,000 staff. We have two staff in Ottawa. When we discover that we're wasting our time, we move on. We have no axe to grind with the CBC. It's not a particular focus of ours. They almost never answer our questions anyway.
    It's not that the're delaying; it's that they're denying. They're just absolutely not responding to your requests for information.
    Right. And then we appeal to the Information Commissioner and win, and they ignore the outcome.
    Are you aware if any of those denials are based on their interpretation of 68.1? Is that the rationale they're giving? Have you had any communication that this is their rationale, that they somehow seem to believe that your request is protected by journalistic, creative or programming activities?
    I don't believe they even resorted to that. It would be ludicrous if they did.
    Just getting back to your position on the CBC generally, as the Canadian Taxpayers Federation, you've talked about the $1.16 billion of public financing that this corporation, this broadcaster, gets every year from us.
    I am curious as to why the Canadian Taxpayers Federation wouldn't have a stronger position on that issue, whether or not we agree or didn't agree. Do you believe the Canadian taxpayers are getting good value for $1.16 billion a year of direct taxpayer funding for a broadcaster that competes with many other national and regional broadcasters across the country?
    No, I don't think you can make the argument. Nobody can sit here and make the argument that $1.16 billion of public funds is an efficient allocation of public funds. It clearly isn't. We live in a 200 channel universe; 190 of the channels cost the taxpayers just about nothing, and 10 of the channels—the CBC channels—cost $1 billion. How do you square that? It makes absolutely no sense.
    That being the case, government is running a some $30 billion deficit. There are hundreds, if not thousands, of instances of taxpayers' funds being wasted. The CBC is a huge political and cultural issue. As soon as you mention the word CBC, everybody chooses a side. If it weren't the CBC, I'm sure that the official opposition wouldn't be providing such a vigorous defence of them because of everything the CBC represents—you know, Peter Mansbridge, Tommy Hunter, Charlie Farquharson. It's the whole CBC history of the last 75 years.
    At the Canadian Taxpayers Federation, we've just not made it a big priority to engage in that particular cultural struggle.
    But a—
    Thank you, Mr. Butt. I'm sorry, your time is up.
    We're now going to go to Ms. Brosseau, and I understand that she is splitting her time with Ms. Freeman.
    Five minutes, please.



    Thank you very much, Madam Chair.
    Mr. Thomas, thank you for being with us today. I think that it's really important to discuss transparency.
    CBC was given an F grade in the information commissioner's annual report. Natural Resources Canada also received an F.
    Could you give us more details on that?
    Natural Resources Canada is not a federal department from which the Canadian Taxpayers Federation tries to obtain information. So, I cannot discuss the activities of that department.
    Could you talk about an organization that also received an F and is similar to CBC?
    There have been no cases, across the government or within specific departments or institutions, where officials did not cooperate regarding information in the areas of science or IT, for instance. This is a systemic issue throughout the federal government, and it's something that I have already talked about. It seems to persist regardless of the political party or the government.


    So CBC became overwhelmed once it became subject to the Access to Information Act. It was bombarded with so many requests from one source.
    What I've found and what I've read from the Information Commissioner is that they took appropriate measures to really try to deal with this. It was not expected, because when they became subject to the Access to Information Act, they had spoken with other institutions subject that were subject to it and they thought they were ready and had enough staff. I think over a period of time they had to hire more because the influx or demand was way too much.
    Foreign Affairs and International Trade received an off-the-chart red alert. Do you know what that is, a red alert? I guess it must be lower than an F, is that right?
    I assume so.
    Do you have a question?


    Does my colleague want to ask another question?


    Thank you so much, Mr. Thomas, for coming to committee to speak about this issue.
    I'm confused as to why this actually is a top priority of this committee. I know you mentioned there are egregious examples of other violations. Could you explain why the Canadian Taxpayers Federation doesn't see these as a priority? Why would that be the case if there were maybe bigger violations that we should be looking at?
    Well, I'm not saying that this committee or the government shouldn't consider this as a priority. We have a long and storied track record that we've earned through thousands of access to information requests and through a long history of cooperating with other freedom of information privacy organizations on a number of files supporting the principal of access to information, and we intend to continue with this. We believe--


    Okay, thank you.
    Ms. Freeman, your time is up. Thank you very much.
    We'll now go to Mr. Dreeshen for a very short question, please.
    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.
    Okay, thank you very much.
    Thank you, Mr. Dreeshen. I'm sorry, but we've run out of time.
    Mr. Thomas, again, thank you very much for appearing before the committee this morning. I would remind you of the ATIP requests you agreed to table with the committee. Could you do that through the clerk, please.
    Thank you.
    The meeting is adjourned.
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