CBC to appeal Federal Court access-to-information decision

The CBC says it intends to appeal a Federal Court decision Friday that gives the Office of the Information Commissioner the authority to order the broadcaster to produce records. The CBC argues that Section 68.1 of the Access to Information Act permits the broadcaster to exclude some records from release. But on Friday the Federal Court ruled that the information commissioner has the jurisdiction to order records from the CBC. “We can confirm that we will proceed with an appeal,” Marco Dubé, a spokesman for the CBC, told The Wire Report in an interview. “We believe that in order to protect our journalistic and programming independence, the commissioner should not have access to documents excluded under the act.” He said that, as a result of the decision, the information commissioner could “gain access to journalists’ files and therefore consult investigative materials in their entirety. That would include, in certain cases, the identity of confidential sources.” This decision followed a number of complaints to Information Commissioner Suzanne Legault about the CBC's application of section 68.1 of the Access to Information Act, which says the law “does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.” A dispute between the CBC and the commissioner’s office arose after Legault received 16 complaints from individuals who said the CBC refused to release documents under the exemption. Following an investigation, Legault requested the CBC give up some records for review by the commissioner. But the CBC refused, saying the information requested under the 16 files was exempted under Section 68.1. On Sept. 15, 2009, the commissioner ordered the CBC to send copies of the requested documents. The CBC challenged the commissioner in court, saying it did not have the jurisdiction to order the records. The Federal Court decision, issued by Justice Richard Boivin, said the commissioner must have the independent authority to determine whether records are exempted or fall under the act. Boivin wrote that given the Access to Information Act’s system as a whole, the commissioner has the jurisdiction to order documents, “including those that in the opinion of the CBC refer to its journalistic, creative, or programming activities, to determine whether the documents fall within the exception and can be subject to exclusion,” the decision said. Boivin added that the CBC did not issue a written bulletin to clarify its policy on denying information under the act. “The argument advanced by the CBC sanctions the Crown Corporation as judge and jury with respect to the access requests it receives … his approach sets up a parallel system at the margins of the Act,” Boivin wrote. Howard Bernstein, a former broadcaster with the CBC, CTV, and Global Television, said in an interview he does not believe the issue is about protecting programming or journalistic secrets. The CBC is trying to protect the release of potentially embarrassing information, he said, adding he has watched the CBC argue for more openness and transparency in public organizations, and the broadcaster should play by the same standards. “I’m certain their investigative unit is certainly against this,” he said. The court decision noted that providing information to the commissioner is not the same as disclosing the records publicly. It added that the commissioner’s investigations are conducted in private and that reviews must be neutral and objective. Quebecor Media’s QMI news agency, which operates the Sun newspaper chain, reported Saturday the CBC has been the subject of almost 900 complaints to the commissioner, “many of which were filed by QMI Agency.” QMI said CBC has refused to release records such as “business and hospitality expenses, access to information fees paid in 2007-2008, and records of the handover between former CBC president Robert Rabinovitch and current president Hubert Lacroix.” Reports also say that QMI has requested records about the CBC’s contest to select a new theme song for Hockey Night in Canada and hospitality expenses for royal visits. The Conservative government amended the Access to Information Act in 2007 so that it applies to the CBC and other Crown corporations. Serge Sasseville, a spokesman for Quebecor Media, said the company is happy with the decision. The CBC now has 30 days to file an appeal with the Federal Court of Appeal and could request a stay of judgment while the matter is before the courts. That would allow the CBC to continue withholding the records related to the 16 complaints. Ian Morrison, spokesman for watchdog group the Friends of Canadian Broadcasting, said the sooner the CBC accepts the need for more accountability, the better off Canadian broadcasting will be. “The CBC has to take the high road,” Morrison said. “Fighting this with taxpayers’ money is not a good idea. In fact, it plays into the hands of the relatively few enemies of public broadcasting in Canada.” In a release, Information Commissioner Legault said the court decision "confirms the importance of my role as the first level of review." Legault said that to fulfill her mandate and “responsibility to protect the rights of requesters, I must have authority to examine records that are the subject of complaints.” sdoyle@thewirereport.ca

CBC to appeal Federal Court access-to-information decision

Broadcast | September 27, 2010

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us