News | CBC contests Information Commissioner over disclosure exemption

Parliamentary committee seeks to clarify law, end taxpayer-funded court case

The Canadian Broadcasting Corporation (CBC) is battling the Information Commissioner of Canada, Suzanne Legault, over a section of the Access to Information Act that gives the broadcaster an exemption from releasing certain records. The case is currently in the Federal Court of Appeal.

The CBC received 327 Access to Information requests (ATIs) last year and responded to 257 within the government-mandated time frame. The Information Commissioner reviews complaints about how ATIs are handled.

The CBC is contesting the extent to which Legault can investigate complaints. In 2010, the Federal Court ruled that Legault could examine information herself and decide whether or not the CBC should be required to release it. The CBC disagrees, claiming that, by law, some information is exempt from being released under the Act.

The Conservative government brought the CBC, as well as all other Crown Corporations, under the Act in 2007. The Act’s purpose is primarily to “extend the present laws of Canada to provide a right of access to information in records under the control of a government institution.” However, the CBC has a special exemption; Section 68.1 states that the Act does not apply to the broadcaster’s journalistic, creative, or programming activities.

In a meeting of Parliament’s Committee on Access to Information, Privacy and Ethics last Thursday, Konrad von Finckenstein, former Federal Court judge and current chairman of the Canadian Radio-Television and Telecommunications Commission (CRTC), said “the easiest way to fix it is to establish by legislation” whether the Information Commissioner can look at the documents or not.

“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,” Finckenstein told the committee.

On Tuesday, Legault proposed a “discretionary, injury-based exemption” that would require the CBC to prove that revealing certain information would cause them harm.

Some Canadians are concerned that the court case is a costly way of resolving a dispute between federal institutions, since taxpayers are paying the legal fees for both sides.

“I think that the fastest way to end this battle would be for Parliament to reconsider Section 68.1,” said Dean Del Mastro, a Conservative MP involved in challenging the CBC, in an interview with The Daily.

Del Mastro disagrees with the way the CBC has been using Section 68.1.

“They’re, in fact, using that clause to exempt all of their expenditures, which is not the intent of access to information laws,” he said.

Derek Fildebrandt, the national research director of the Canadian Taxpayers Federation, agrees that the court battle is a waste of money, but doesn’t think that the legislation has to be changed.

“The spirit of the Act was very clear and the CBC has flat-out refused to acknowledge that it applies to [them],” he said. “You can’t spend $1.13 billion without being accountable for it.”

Fildebrandt has experience filing ATIs, and calls the CBC’s current process “an unmitigated disaster.”

“There are some serious problem spots for access to information right across the federal government, but the CBC stands up as the absolute worst,” he said.

Although public interest groups and other media sources do file ATIs, media conglomerate Quebecor has filed the majority of ATI requests with the CBC. Quebecor has challenged the CBC for refusing to release, among other things, the costs of operating its fleet of vehicles.

The CBC responded to challenges from Quebecor in a statement on its website: “We, and [Legault], are trying to clarify the rules which protect ‘journalistic, programming, and creative activities.’ This is the proper thing to do.” The CBC statement added that it reports to several government bodies, and is, therefore, already being held accountable.

While giving a talk at the University of British Columbia about the future of Canadian broadcasting, CBC President Hubert Lacroix explained that the CBC is fighting to protect its journalistic sources.

Yet, Quebecor CEO Pierre Karl Péladeau told the Parliamentary committee on Thursday that “of the 16 Access to Information requests that are before the court, not a single one is in any way related to journalistic sources.”

Lacroix will appear before the committee next Tuesday.


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