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View Pierre-Luc Dusseault Profile
NDP (QC)
We will begin the 84th meeting of the Standing Committee on Access to Information, Privacy and Ethics, which concerns Bill C-461.
In the first hour, we will hear from the Privacy Commissioner, Ms. Jennifer Stoddart. She is here with Ms. Kosseim, who is Senior General Counsel and Director General of Legal Services, Policy and Research.
Mr. Boulerice, you have the floor.
View Alexandre Boulerice Profile
NDP (QC)
We have just left Parliament, where votes were held. I believe that, despite the delay, we could nevertheless give the commissioner an hour, as was initially planned. In that way, we could hear her evidence and have enough rounds so that all members could ask their questions.
View Pierre-Luc Dusseault Profile
NDP (QC)
I plan to give the commissioner an hour, unless we run out of questions to ask her at some point. Otherwise it will be an hour, which will leave us 45 minutes for the second item on the agenda, clause-by-clause consideration. If those 45 minutes are not enough, we will have to schedule more meetings.
Without further ado, I will let Ms. Stoddart make her presentation. Committee members will then ask questions.
Thank you for being with us, Ms. Stoddart. You have the floor.
Jennifer Stoddart
View Jennifer Stoddart Profile
Jennifer Stoddart
2013-06-05 15:48
Thank you, Mr. Chair.
Mr. Chair and honourable members, thank you very much for inviting me here this afternoon for your study of Bill C-461, the CBC and public service disclosure and transparency act.
As you said, Mr. Chair, the senior general counsel is with me in order to respond to your more technical legal questions.
First, for some context, from the outset I'd like to acknowledge that the amendments to the Access to Information Act and the Privacy Act in the bill raise complex and highly topical issues related to open government. We take it as given that most citizens would like to see greater openness in public institutions. Accountability plays a central role in our democracy and in Canadian society. Indeed, in September 2010, all of Canada's federal, provincial, and territorial access to information and privacy commissioners signed a resolution to promote open government as a means to enhance transparency andaccountability.
As you are aware, Bill C-461 amends both the federal Access to Information Act as well as the Privacy Act.
As Privacy Commissioner, I will limit my remarks to those amendments that implicate privacy. I understand that you have already had the opportunity to hear from my colleague Ms. Legault, the Information Commissioner, on the amendments pertaining to access to information.
At a high level, Bill C-461 revises the definition of "personal information" found in section 3 of the Privacy Act to specify that certain categories of information are "non-personal" information for the purposes of release under access to information requests.
Specifically, the elements no longer deemed personal information would include: the classification, salary and responsibilities of any federal employee whose salary is equal to or greater than the minimum salary of the first level of the Deputy Minister category, currently set at $188,600; the classification, salary range and responsibilities of any position held by a federal employee whose salary falls under the first level of the Deputy Minister category; and the details of any reimbursed expenses incurred by any federal employee in the course of their employment.
Now I will tell you about existing practice in government.
To better situate these proposed amendments in the broader drive for openness and accountability, I would like to briefly touch on comparable measures that already exist in various sectors and at various levels of government.
The Public Service of Canada already makes publicly available its rates of pay for all of its positions, up to and including those at the Deputy Minister and Chief Executive Officer levels. Similarly, for Governor-in-Council appointments, the Privy Council Office website lists detailed salary ranges for each position, which incidentally include those of the Office of the Privacy Commissioner of Canada.
The Treasury Board Secretariat has also implemented a series of measures that apply across the federal public service for the proactive disclosure of financial and human resources-related information such as travel and hospitality expenses for senior government officials, the reclassification of government positions, and contracts above $10,000.
At the provincial level, some governments use thresholds to disclose the salaries of public sector officials. According to our research, Manitoba has the lowest threshold at $50,000, whereas Ontario and Nova Scotia adopted $100,000 thresholds, and British Columbia a $125,000 threshold. While Manitoba, Ontario and Nova Scotia disclose the names and salaries of all officials and employees earning over the established threshold, British Columbia only releases the names and salaries of a public sector organization's CEO and the next four highest ranking executives.
In the private sector, publicly-traded companies must also disclose all compensation paid to their Chief Executive Officer, Chief Financial Officer and next three top-paid executives. This includes all shares, options and bonuses, and applies to those earning more than $150,000 in total compensation.
Given these examples, it would appear that disclosure of salaries for individuals in leadership roles within organizations, in both the Canadian public sector and private enterprise, is already best practice.
In the opinion of my office, and taking into account best practices elsewhere in Canada, the disclosure of the salaries of the most senior officials in the federal public sector does not represent a significant privacy risk relative to the goal of transparency and the broader public interest. With respect to the disclosure of position classifications, job descriptions, and reimbursed expenses, my understanding is that this kind of information is already disclosed upon request in many government departments and agencies under the existing access to information regime.
Within my own office, our director of human resources and our chief privacy officer indicate to me that were we to receive an access to information request tomorrow for an employee's classification, salary range, work description, or reimbursed expenses, we would disclose this information. This would be in accordance with our access to information and privacy responsibilities and our general commitment to transparency and accountability to Canadians.
Given current practice, and the broader public policy aim of institutional transparency and accountability, these disclosures do not represent serious privacy implications.
I thank you once again, Mr. Chair, for this opportunity to present my office's views on this bill. I look forward to your questions.
View Alexandre Boulerice Profile
NDP (QC)
Thank you very much, Mr. Chair.
Commissioner, thank you very much for your very interesting testimony. Now I would like to go a little further with my questions.
Do you think that section 68.1 of the Access to Information Act and section 69.1 of the Privacy Act are functional in the present system? Very simply put, do they work?
Jennifer Stoddart
View Jennifer Stoddart Profile
Jennifer Stoddart
2013-06-05 15:55
We make relatively little use of those sections. I have learned from reading certain Federal Court decisions that those sections could be drafted more clearly.
Perhaps our general counsel can give you a better answer.
Patricia Kosseim
View Patricia Kosseim Profile
Patricia Kosseim
2013-06-05 15:56
Yes, as several witnesses have mentioned before the committee, the provision as it stands in our act and in the Access to Information Act suffers from a lack of clarity in that it provides for both an exclusion and an exemption from the exclusion. I believe the purpose of the amendment was to clarify its intent, particularly in light of the Federal Court of Appeal decision.
View Alexandre Boulerice Profile
NDP (QC)
It is my understanding that, during the judicial process, the CBC and you, as Privacy Commissioner, reached a certain agreement in October 2010 on the exclusions provided for in section 69.1.
Can you tell us a little more about that agreement? Can you also tell us how many times the CBC claimed the exclusion provided for in section 69.1?
Jennifer Stoddart
View Jennifer Stoddart Profile
Jennifer Stoddart
2013-06-05 15:57
I believe our general counsel is in a better position than I to give you an answer.
Patricia Kosseim
View Patricia Kosseim Profile
Patricia Kosseim
2013-06-05 15:57
You are alluding to an access to information request concerning which a complaint was filed with our office regarding the interpretation and application of section 69.1, which is the relevant section in our case.
We had experienced the same situation as the Information Commissioner. The CBC at the time had adopted the position that the commissioner could not see or view the documents in question. We therefore issued an order demanding to see the documents and thus wound up in Federal Court as it was deliberating on the matter involving the Information Commissioner.
Our case did not make it to the decision stage as we reached an out-of-court settlement that was agreeable to the complainant and the CBC. The Federal Court therefore did not have to render a decision because we had managed to reach that settlement.
Patricia Kosseim
View Patricia Kosseim Profile
Patricia Kosseim
2013-06-05 15:58
No, not often. In that specific case, we had to apply the interpretation of that section, but to my knowledge that does not happen often.
View Alexandre Boulerice Profile
NDP (QC)
Good.
As you probably know, many of the people who have come to testify before us on Bill C-461 had quite major concerns about the protection of journalistic sources.
Our interpretation of the bill as it stands is that information on programming, creation and journalistic work will be protected provided it concerns the CBC's independence. In our view, under the current interpretation, independence means independence from the federal government.
Many people who came here asked whether it was possible, for example, for someone to file an access to information request to determine what company or individual the program Enquête would be investigating. In that case, the journalist might perhaps be compelled to provide the applicant with information on ongoing investigations.
Do you view that kind of practice as a threat from your privacy perspective?
Jennifer Stoddart
View Jennifer Stoddart Profile
Jennifer Stoddart
2013-06-05 16:00
I am not an expert on the Canadian Broadcasting Corporation Act or on matters pertaining to the rights of journalists. However, it seems to me that, under the wording of the amendment introducing the new subsection 18.2(1) of the act, the CBC would be able to state that such disclosure could reasonably be expected to prejudice the corporation's journalistic independence. I think that a request for information on a program that has not yet been produced could fall into that category. However, I am not an expert on these matters.
View Alexandre Boulerice Profile
NDP (QC)
That would be the case, except if independence only means independence from the federal government.
Things have really been going well in the past two or three years since your agreement with CBC/Radio-Canada in October 2010. That is what I understand.
Jennifer Stoddart
View Jennifer Stoddart Profile
Jennifer Stoddart
2013-06-05 16:01
I believe that is the case. The CBC is not very high on the list of organizations that have been the subject of complaints filed with the Privacy Commissioner.
Jennifer Stoddart
View Jennifer Stoddart Profile
Jennifer Stoddart
2013-06-05 16:01
No, not in our view or that of the public, since it is the public who file the complaints.
View Alexandre Boulerice Profile
NDP (QC)
That is also somewhat our feeling about the bill before us today. It comes down to that good English expression:
“if it ain't broke, don't fix it.”
The CBC has earned an A grade for privacy and access to information. Ultimately, we are dealing with a bill that does not make much of a contribution. It solves no problems. There does not appear to be a crisis as far as you are concerned or as regards access to information.
Thank you.
View Chris Warkentin Profile
CPC (AB)
Thank you very much, Mr. Chair.
I think many of my constituents would disagree with Mr. Boulerice. Many of my constituents do have some questions about CBC and do want those things answered. But we have to get a bill through this committee, one that will work and that will respect, obviously, the balance that's necessary in terms of protecting journalistic rights, the rights of a journalist to keep their sources confidential, and of course, the right of the public to know where their resources are being allocated. We're working on just that—to get the balance right.
You said in your testimony, Commissioner, that currently, if somebody were to ATIP your office, you would release the information with regard to an employee's classification, their range of salary, their work description, and the reimbursed expenses that they have received.
Do you know if that's the same requirement that CBC would be under right now?
Jennifer Stoddart
View Jennifer Stoddart Profile
Jennifer Stoddart
2013-06-05 16:03
I can't speak to the practice at CBC, but that's our reading of our obligations in terms of access to information legislation.
View Chris Warkentin Profile
CPC (AB)
I think that's information that obviously the public may, from time to time, want to find out. I think that maybe is an issue, and that's why it's an important clarification within the legislation that my colleague is undertaking, to ensure that CBC is fully aware of the roles and responsibilities they must undertake when trying to collect this information.
We did hear concern with regard to.... CBC wrote a letter, actually, to our committee outlining some concerns with regard to journalistic information that might be disclosed to a secondary agency like CRTC, so from the corporation to CRTC. Their interpretation of the amendment that has been presented and proposed is that CBC could withhold information if it involved a journalistic source. But if they released that information to CRTC, in an effort to comply with their obligations to CRTC, the CRTC may, as a secondary agency, actually have to release that information.
Have you looked into that at all, or undertaken a review of that concern?
Jennifer Stoddart
View Jennifer Stoddart Profile
Jennifer Stoddart
2013-06-05 16:05
Not really, honourable member. I believe this is mostly an access to information issue. That's unless you're talking about some personal information, or...?
View Chris Warkentin Profile
CPC (AB)
Well, let's consider the possibility that it would be personal information that had been released to a secondary institution. Should we be concerned that a secondary institution would release information that a primary institution shouldn't release?
Jennifer Stoddart
View Jennifer Stoddart Profile
Jennifer Stoddart
2013-06-05 16:05
As I recall, there's an obligation on the secondary institution to consult. This is not their personal information, or they got it from another institution, so I believe they cannot simply.... You can only release personal information in very strict situations, and usually to the person to whom it belongs, whose personal information it is. So that does not seem to me a very likely scenario, but I don't know if our general counsel has...?
Patricia Kosseim
View Patricia Kosseim Profile
Patricia Kosseim
2013-06-05 16:06
I think the same question was also posed, if I recall, to earlier witnesses, and there is the concept of custody and control—which government institution has custody and control of the information? In this case, it would be the CBC. If an access requester for personal information or other information were to seek access to that information, the appropriate department to address that request to would be the CBC.
Jennifer Stoddart
View Jennifer Stoddart Profile
Jennifer Stoddart
2013-06-05 16:06
If it's a human source, a person, yes. That would be personal information of that person, yes.
View Chris Warkentin Profile
CPC (AB)
Well, that does give me great comfort. I think we've heard a lot of concern from a number of different journalist organizations that were concerned about these matters. I appreciate your interpretation.
The CRTC falls under your purview as well, in the same way that any other agency does. Is that correct?
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