CBC needs independence from information commissioner, lawyer tells court

MONTREAL and OTTAWA—The words "exception" and "exclusion" are creating problems under the Access to Information Act and must be clarified, Christian Leblanc, a Fasken Martineau lawyer representing CBC/Radio-Canada, told the Federal Court of Appeal at a hearing in Montreal Tuesday. Leblanc said the access-to-information debate between CBC and Information Commissioner Suzanne Legault comes down to an interpretation of the law. “It’s a regime of exception and a regime of exclusion,” he said. Leblanc said that right now, under the terms of exclusion, the information commissioner does not have access to specific documents falling under Sections 68.1 and 68.2 of the Access to Information Act. The CBC argues the sections permit it to exclude some records from release. It is appealing a Federal Court decision last year that gave the Office of the Information Commissioner the authority to order the CBC to produce requested records. Leblanc told the court Tuesday that for the information commissioner to gain access to excluded documents, the Access to Information Act would have to be amended. The amendment would have say that the information commissioner can view requested documents “at all times,” Leblanc said, and it would have to grant the commissioner access to private sector documents as well as federal documents. Leblanc told the court that, as a non-governmental body, the CBC has the right to exclude certain records. He pointed to prime minister Jean Chretien's refusal to release his agenda to the commissioner, a decision that was later supported by the Supreme Court. “The Prime Minister said, ‘I am not a federal institution, so the law does not apply to me,’” Leblanc said. The lawyer added that the Crown corporation’s main concerns relate to its independence and the protection of its journalistic sources. Leblanc told the court that some documents are sensitive and, to maintain its independence and credibility, the CBC cannot release them. When Justice Marc Noël asked why the commissioner should not be allowed to review the documents in question, Leblanc said that giving the commissioner the power to force CBC to produce records could hurt its journalistic integrity. “The information commissioner is already someone other than CBC/Radio-Canada,” he said. “What about sources?” Leblanc asked rhetorically. “What will we say? Your name will be protected until the information commissioner comes to ask for it?” Leblanc added that the CBC is concerned that the commissioner’s opinions on the release of records may not be the same as those of the broadcaster. Leblanc told the court that it is important for the CBC to manage its documents because it affords the broadcaster distance from the government. “The media, by finding and assembling information, allows the public to construct an enlightened opinion,” he said. The CBC, he said, is not an extension of the government. “We have to ensure that she has free reign and is not controlled by the state.” Yannick Landry, legal counsel for the information commissioner, told the court Tuesday that by accepting the CBC’s refusal the court would give the broadcaster “absolute” authority over the issue. “If we accept the CBC’s interpretation ” he said, “we will grant it absolute discretion to determine what should fall under Section 68.1.” Justice Robert Mainville said the CBC’s decisions could always be reviewed by a tribunal if necessary. Landry told the court that despite the CBC’s refusal to release some records, the commissioner should be permitted to view excluded documents to determine whether they can be exempted under Sections 68.1 and 68.2 of the act. “If the commissioner cannot see the documents,” he said, “how will she know that they were in fact under exclusion, or that the CBC did not simply decide that?” Landry added that by allowing the CBC to refuse requested documents without verification, the court is limiting the information commissioner’s power. “Exclusion is stopping the commissioner from exercising her power,” he said. Unless the documents are signed by and deemed to be confidential by a cabinet minister, there is nothing stopping the commissioner from accessing them, he said. Protecting sources would remain a journalistic privilege, he added. If a requested document was related to a confidential source, “an affidavit would have to be provided and the commissioner would decide,” Landry said. The court hearing comes as the CBC's delays and withholding of records have triggered members of the Conservative government and CBC competitor Quebecor Media Inc. to question the CBC's transparency in how it spends its annual parliamentary appropriations of $1.1 billion. The House of Commons ethics committee is now examining the CBC’s reluctance to turn over documents to the information commissioner, and in an appearance before the committee Tuesday, CRTC chair Konrad von Finckenstein, a former Federal Court judge, blamed the dispute on awkwardly worded legislation. “The wording of the statute right now says the ‘act does not apply, except for,’ so something applies and something doesn’t. That’s what’s creating the problem here,” von Finckenstein said in reference to section 68.1 of the Access to Information Act. Section 68.1 of the act says it “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.” Von Finckenstein said this leaves too much room for “perfectly legitimate” yet opposing interpretations of the law. “Rarely have we seen something that says, ‘It doesn’t apply, except it does.’ It’s a strange way of drafting something,” he said. Von Finckenstein reminded committee members that they have the power to change the law. “That’s for you as a legislator to decide,” he said to Conservative MP and committee member Brad Butt. “You can say ‘the act does not apply,’ in which case it doesn’t apply. Or you can say ‘the act applies, but this information can be withheld.’” When asked to explain why the CBC would need exemptions to the act, von Fickenstein said CBC executives should not be forced to disclose information such as journalistic sources or potential programming ideas, which could give other broadcasters a competitive advantage. “They very clearly are competitors in terms of trying to attract eyeballs and also since the CBC lives off advertising, for the large part, they compete for advertisers.” Following the committee meeting, von Finckenstein told reporters that he believes the government should change that section of the law if it feels the legislation is “inadequate to hold the CBC to account.” He added: “They obviously feel that way.” Conservative members of the committee say the CBC should be more transparent. Dean Del Mastro, a Conservative MP on the committee and the Prime Minister’s parliamentary secretary, suggested the government may review the legislation. “The chair of the CRTC made a good point today when he indicated that we may want to take a look at clarifying what 68.1 means,” he told reporters after the meeting. “There may be a role for Parliament to define the issue better ... Let’s hear all the witnesses and then allow the committee to make a determination.” news@thewirereport.ca

CBC needs independence from information commissioner, lawyer tells court

Broadcast | October 18, 2011

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