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Speaking notes for Suzanne Legault

Information Commissioner of Canada

ACCESS TO INFORMATION AT THE

CANADIAN BROADCASTING CORPORATION

Standing Committee on Access to Information, Privacy and Ethics (ETHI)

March 21, 2011

CHECK AGAINST DELIVERY

Thank you, Mr. Chairman. I am pleased to appear before you today to assist the Committee in its study of access to information at the Canadian Broadcasting Corporation (CBC).

My remarks will address the recent report cards contained in the Special Report entitled Open Outlook, Open Access. I will also briefly speak to my office's experience with the CBC in investigative matters.

Before I discuss these two issues, I would like to thank the Committee for the follow-up it did on last year's report cards. The Report and the work of the Committee in this regard ensure that federal institutions are held accountable for their performance in complying with the Act.

In this year's report card exercise, which covers the 2009-2010 reporting period, I continued the study of delays in responding to access to information requests as set out in the Three-Year Plan for Report Cards. The exercise included eight institutions that became subject to the Access to Information Act in 2007 under the Federal Accountability Act. Five institutions are Crown corporations, including the CBC, which operate in a largely private sector environment with varying combinations of commercial and public policy objectives. The other three are agents of Parliament. All new institutions that received five or more complaints since they became subject to the Act were selected.

I am delighted to report some excellent results for the majority of the institutions in this year's cohort. Six of the eight institutions performed better than average. Canada Post and the CBC, however, are not part of that group. This year's report cards confirm that, with the right tools, resources and attitude, compliance with the Act is achievable.

As noted in this Committee's 12th Report, the purpose of the report cards is not to chastise institutions. The process is a tool at my disposal to affect greater compliance with the requirements of the act. It allows me to see compliance issues in their full context and to recommend meaningful solutions .

With this in mind, my office undertook a report card on the performance of the CBC and made four recommendations to the institution on ways to improve their compliance with the Act. Right from the start in September 2007, CBC struggled to respond to access requests due to an initial downpour of requests in the first few months that it became subject to the Act. Subsequently, my Office received 534 complaints against the CBC between September 2007 and April 2008 which represented 22% of all complaints registered by my Office that year. Most of these complaints were delay related. In fact, since 2007, the CBC has consistently been in the top three institutions against which complaints are filed with my Office.

The CBC received an F rating because of the delays in processing access requests, the high deemed refusal rate and the long average completion time. These delays were largely due to the backlog of requests CBC carried over from the previous years. We noted, however, that they were also the reflection of long retrieval, review and approval processes.

Towards the end of 2009-2010, we saw signs of improvement in CBC's performance, in terms of backlog reduction and a shorter response time for new requests. As a result, the number of delay complaints registered by my office has decreased this year.

Mr. Chair, prior to coming here today, I surveyed some of my investigative staff to get their views on the CBC's performance in the current reporting period. They felt that the CBC has made efforts to improve the effectiveness of their internal processes and to provide more timely responses to requesters. Most notably, they indicated that there is good collaboration with the new ATIP Director at the CBC.

Beyond improvements on administrative aspects of access requests, however, the picture is not as encouraging. I noted in my special report that, as a result of the legislative changes introduced by the FedAA, the Act now has an increased level of complexity that causes uncertainty in the legal interpretation of these new limitations. For example, under section 68.1, the Act does not apply to any information that is under the control of the CBC that relates to its journalistic, creative or programming activities other than information that relates to its general administration. Consequently, my office deals with more complaints against new institutions and is involved in more litigation.

The CBC has refused to provide investigators in my office with records which it claims are excluded by s. 68.1 of the Act. This approach differs from that taken by Atomic Energy of Canada Limited which provides my Office with all information it claims is excluded under section 68.2. I fundamentally believe, Mr. Chair that an independent review of the records or information withheld by CBC is essential to ensure that the exclusion has been properly applied. The scope of my investigative powers in relation to the refusal to disclose records by CBC under section 68.1 has led to litigation.

In the first instance, the Federal Court ruled in favour of such an independent review by my Office. The Court explained that I must have the authority to determine, in an objective and independent fashion, if the records fall under the ambit of the exception and if they qualify for exclusion. This decision is currently before the Federal Court of Appeal which limits my ability to make further comment. However, I note that due to this ongoing litigation my office has suspended investigations of more than 180 refusal complaints relating to section 68.1. Some of these complaints go as far back as 2007.

Mr. Chair, the delays caused by this litigation have had a significant impact on the ability of the public to obtain public sector information in a timely way. And I am concerned that there may be further delays once these legal proceedings are over. Based on my own office's experience in investigating some of our old complaints, we have seen instances where an institution's access request processing file is incomplete, responsive records are often difficult to find and retrieve, electronic information sometimes has been deleted, and personnel knowledgeable about the requested information are no longer available.

Therefore, I would suggest that a best practice, for institutions where access to information requests are subject to litigation, is to ensure that the search, retrieval and processing of the responsive records are completed and held in abeyance until all proceedings are completed. This will ensure that no further delays occur after the end of litigation.

I urge this Committee to do what it can to ensure that the recommendations made to the CBC in its report card are implemented and that the impact of the delay resulting from the ongoing litigation is minimized.

Thank you.

I would be pleased to answer your questions.