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Speaking notes for Suzanne Legault Information Commissioner of Canada
ACCESS TO INFORMATION DISPUTE AND THE RESULTING COURT ACTIONS CONCERNING CBC
Standing Committee on Access to Information, Privacy and Ethics (ETHI)
October 25, 2011
CHECK AGAINST DELIVERY

Thank you Madam Chair.

My remarks this morning will be brief. I will address three issues. First, I will review the origin and the current status of the ongoing court case involving the Canadian Broadcasting Corporation (Corporation, CBC) and the Information Commissioner. Second, I will review the Corporation's performance under the Access to Information Act (Act). Third, I will review the situation in other jurisdictions as it relates to their public broadcasters and suggest possible changes to our own Act should the Committee wish to review the current legislative text as part of its deliberations.

But first let me introduce Emily McCarthy. Ms. McCarthy is our General Counsel and is currently acting as Assistant Commissioner, Complaints Resolution and Compliance.

Canadian Broadcasting Corporation vs Information Commissioner

The origin of the dispute between my office and the Corporation dates back to 2009. My Office was investigating complaints regarding CBC's refusal to disclose records based on section 68.1. As you know, s. 68.1 provides an exclusion from the Act for information relating to CBC's creative, programming or journalistic activities however there is an exception to this exclusion for information relating to the general administration.

In the course of our investigations, we asked the CBC to provide us with information that had been withheld so that we could assess whether its decision on disclosure was justified or whether the withheld information fell within the exception to the exclusion. The CBC refused to provide the relevant information and so my office issued a production order to the CBC in relation to certain complaints.

That same day, the Corporation initiated a judicial review application under s. 18 of the Federal Courts Act challenging my Office's authority to obtain records they claimed were excluded under s. 68.1

The Federal Court dismissed the CBC's application for judicial review and the CBC appealed that decision. The Federal Court of Appeal heard the appeal on October 18th 2011 and has taken the matter under reserve which, as you are aware, limits my ability to comment further on the case.

Given the court process, my Office has, up to now, suspended the investigation of 196 refusal complaints in which CBC has relied on section 68.1. Some of these complaints date back to 2007. Given the age of some of these complaints I raised a concern with this Committee in March 2011 that the failure to retrieve responsive records could have a negative impact on Canadians' right to access information.

I can report that, since our last appearance on this matter, CBC has assured my Office that it has started retrieving the records responsive to the complaints that have been put on hold, but it is still not confirmed that the CBC has identified and retrieved the responsive records in all cases.

Canada Broadcasting Corporation's performance under the Act

Madam Chair I have tabled with the Committee a brief statistical overview of the CBC's performance since it became subject to the Act.

In sum, I can safely say that the CBC's performance has improved since it became subject to the Act in 2007, but I still have serious concerns.

Let me explain.

Since it became subject to the Act, the CBC has received about 1450 requests for information. Of those, close to 1100 have resulted in complaints to my office. However, as you can see from the document I handed to the Committee, the number of complaints relative to the number of requests has been declining steadily year over year.

Last year our Special Report highlighted that the CBC took an average of 158 days to process access to information requests and had a deemed refusal rate of close to 60%. Although we have not verified this information yet, the CBC is reporting significant improvements on these numbers in its most recent annual report to Parliament for an average of 57 days and a deemed refusal rate of 22% in the last fiscal year.

Notwithstanding this progress in performance, I still have some serious concerns. In addition to the cases currently on hold pending the outcome of the litigation, my office still has close to 180 ongoing investigations with the CBC. It is my observation at this time that the current level of resourcing in CBC's access to information office is not sufficient to address the investigations of these complaints with my staff. If there is no change to the current resource levels this situation will likely be aggravated once the investigations into the 196 "on hold complaints" begin.

I am also very concerned with Guidelines for the interpretation of s. 68.1, recently published by the CBC. The Guidelines state that an access to information request may be refused on its face, by the person with the delegated authority, if this person concludes that the requested information is excluded from the application of the Act by virtue of s. 68.1 on the sole basis of the wording of the actual access to information request. In my view, individuals with delegated authority to make decisions as to whether or not information falls within the exclusion found at s. 68.1 must personally review the responsive records to make a valid decision under the Act, including appropriate severances, as required, to maximize disclosure.

It is therefore encouraging that the most recent statistics indicate that the CBC's performance is gradually improving. However, if the reason for the improved response time to requests is that CBC is not retrieving and processing records in accordance with the Act, as the recently published Guidelines suggest, then the decrease in response time may not reflect an improvement in performance. That said, my office has not yet had the opportunity to discuss the Guidelines with CBC officials. I plan to do so shortly. We will also follow up on the performance of the CBC next fiscal year as part of our Report Cards process.

International benchmarking and suggestions for change

Madam Chair I have also tabled with the Committee a review of the freedom of information laws in Australia, Ireland and the United Kingdom as they relate to the coverage of public broadcasters. I have also included in that document suggestions for change should the Committee be interested in looking at our own Act.

In a nutshell, the situation in the jurisdictions reviewed is that public broadcasters are subject to the freedom of information legislation, that programming and journalistic records are covered by way of exclusions to their respective legislations, the oversight bodies have the power to review the records to determine the application of the exclusion, and they can order disclosure.

I have also included possible changes to our own Act because, as Information Commissioner and as previous Information Commissioners have also advocated, I believe that exceptions to the application of the Act should be limited and specific and that such exceptions should be injury based. The wording of exceptions should be clear and objective, which is consistent with the existing provisions of the Act.

Injury based exemptions require that a public institution establish a reasonable expectation of harm and support that claim with specific evidence. A discretionary exemption ensures that the public interest in obtaining access to the requested information will be considered by the head of a public institution even where the information otherwise qualifies for exemption.

Madam Chair, I believe these suggested changes would be consistent with the purposes underlying the Act and would protect CBC's journalistic and programming independence.

Madam Chair, I thank you for the privilege of appearing before the Committee. I will be pleased to respond to your questions.