Speaking Notes for Maryse Bertrand before the Standing Committee on Access to Information, Privacy and Ethics

May 27, 2013, Ottawa


Chairman, Members of the Committee, on behalf of CBC/Radio-Canada, I would like to thank you for the opportunity to be here today; to discuss our concerns about bill C-461 and its potential effect on the Public Broadcaster.

We are concerned that this bill, as currently drafted, will have some unintended consequences that may undermine CBC/Radio-Canada’s ability to do its job as mandated by Parliament.

First, the bill would remove the current protections for “journalism, programming, and creative activities” under the Access to Information Act. There was much discussion in 2010-2011 about clause 68.1; the exclusion for these activities and how it needs to be clarified. In fact, it has been clarified. In November 2011, the Federal Court of Appeal made it crystal clear; the Access to Information Commissioner can review documents held by CBC/Radio-Canada to determine whether the exclusion applies, except when it comes to journalistic sources. I would like to read what the court of appeal said,

”…the exclusion for journalistic sources, like the exclusions provided in sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record – or the part thereof – revealing this type of information would be exempt from the Commissioner’s power of examination.”[1]

That decision is extremely clear and at the time, both CBC/Radio-Canada and the Commissioner expressed their satisfaction with it. The Government, in its response to this committee’s study wrote that the decision, and I’m quoting; “settled the dispute between CBC and the Information Commissioner”.

Indeed, since then, we and the Commissioner have been working together to resolve the files which had been awaiting the court’s decision. As you’ve heard from the Commissioner, that work could be completed by the end of this year and we are collaborating closely with the Commissioner’s office in order to meet her goals.

This bill is proposing to do away with 68.1 completely and to replace this exclusion with an injury-based exemption. That change will introduce a great deal of uncertainty regarding its application as the Commissioner, CBC/Radio-Canada and third parties will have to debate not one, but two elements now: a) whether the material is journalistic, creative or programming information and b) whether the release would prejudice the Corporation’s independence. This will be the case even where there are confidential sources. Introducing an additional requirement of “prejudice to independence” which is untested in any current case law in Canada will inevitably bring us to a new level of uncertainty that will likely require several cases and years to resolve before a sufficient body of legal decisions exist to give us all the necessary guidance.

Parliament must balance the desire for more access to information for federal institutions, with the requirement that media organizations such as ours operate effectively and independently. The specific protections in both the Broadcasting Act and the Access to Information Act for journalism, programming and creative activities, exist to ensure independence.

Incidentally, those protections are not unique. As the Commissioner pointed out in the comparison document she shared with you in 2011, public broadcasters in Ireland, England and in Australia all have specific exclusions from their access to information laws, for their journalism, programming and creative activities, and all without any test in order to demonstrate their independence. Why would Canadians want to change that for their own Public Broadcaster? And why is such a change necessary when in fact, CBC/Radio-Canada is among the strongest performers under access to information. Some facts;

  • We have taken the lead among organizations in posting much of what we release under access on our website. That’s in addition to the Board minutes, and business travel and hospitality expenses we post proactively.
  • CBC/Radio-Canada earned an “A” from the Commissioner, in her most recent review, for its performance under the act.
  • Last fall, the Corporation was recognized for improving transparency and accountability in the 2012 Deloitte Public Sector Leadership Awards.

That accountability goes beyond access to information.

Every year we provide detailed financial information to the CRTC which oversees our license conditions.

Every year the Auditor General of Canada signs off on our financial statements. Every five to 10 years he conducts a comprehensive special audit. In his most recent audit tabled in Parliament this year the Auditor General gave CBC/Radio-Canada a clean audit opinion – the best result that a federal agency can obtain.

We also report to our Minister, to Parliamentarians, and to Canadians through our corporate plan, our annual report and our quarterly financial statements published on our website.

We also have an independent Board of Directors, including an Audit Committee and a Governance Committee, all appointed by the Government to oversee our budgets and our operations. It is their job to ensure that our programming and journalistic resources are being spent wisely.

What this means is that while we are accountable under access to information for the general administration of our Corporation, the law also draws the line at publicly releasing those things that would undermine our independence or prejudice our competitive position; things like how much Peter Mansbridge gets paid, or how much we paid for the upcoming Olympics or the details of our promotional strategies for new shows. For those things it is the responsibility of our Board of Directors to protect both the public interest and the Corporation’s Arms Length Independence.

There are two other unintended effects of C-461 I would like to mention with respect to proposed changes to the privacy act.

One proposes to strip away the existing Privacy Act protections for journalism, programming and creative activities - but only for CBC/Radio-Canada. It would allow the subject of a CBC/Radio-Canada investigation to demand all information about them held by one of our journalists, even before we broadcast. Only CBC/Radio-Canada journalists would be subject to this provision. You can imagine what this would do to the investigative journalism that Canadians value.

Finally, with respect to salaries, C-461 proposes to make public the exact salary of the highest earners working for a “government institution”– rather than the salary ranges of their position, which is the current law. This has a much broader impact than just on CBC/Radio-Canada.

The Privacy Commissioner has established four tests to determine whether an invasion of privacy is justified. One test is whether there is a less privacy-invasive way of achieving the same end. The Commissioner has put it this way, and I quote; “disclosing salary ranges or aggregate salary amounts for relevant groups, as opposed to specific salaries of individuals, could prove just as effective in achieving enhanced transparency and accountability without incurring the corresponding loss of individual privacy.” End of quote.

In our case we would suggest that the combination of our salary ranges being public, available proactively and under access to information, and specific salaries being the express responsibility of the Board of Directors, achieves the goal of enhanced transparency and accountability. And it does so without undermining the Corporation’s ability to maximize public value in our highly competitive business environment, where other broadcasters’ salaries are protected.

Should CBC/Radio-Canada be accountable? Yes and it is. Should there be oversight? Absolutely. And there is. But in addition to accountability and oversight, CBC/Radio-Canada needs to be able to do the job it is being asked to do by Parliament. In our view, this bill does not help us do that.

Thank you.

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