CBC says subjecting it to ATIP requests goes against principle of ‘arm’s length’ agency

Lawyers for CBC/Radio-Canada will appear at a hearing in Montreal on Tuesday to argue before the Federal Court of Appeal that increased transparency under the Access to Information Act is detrimental to the broadcaster and could lead to a loss of independence and credibility. The CBC is appealing a Federal Court decision last year that gave Information Commissioner Suzanne Legault the authority to order the CBC to produce records requested under access-to-information law, many of them from the QMI news agency, owned by competing broadcaster Quebecor Media Inc. A one-day hearing is scheduled for Oct. 18 in Montreal. In an affidavit filed with the Federal Court of Appeal, Pierre Nollet, vice-president and chief of legal direction at Radio-Canada, argued that the integrity and freedom of the Crown corporation’s news operations must be protected. Nollet wrote that the CBC’s refusals of access to information requests are justified and that the broadcaster carefully considers each request when they are received. “Radio-Canada determines firstly, if the request is aiming to obtain information that is excluded from the Access to Information Act—that is to say that is related to its programming, journalistic, or creative activities,” he wrote. If a request is found to be seeking this type of information, it is denied, he wrote. The Crown corporation argues that Section 68.1 of the Access to Information Act permits it to exclude some records from release. Section 68.1 says access-to-information 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.” The CBC has come under closer public scrutiny since the Conservative government passed legislative amendments to bring it under the Access to Information Act in 2007. Delays in responses to requests are causing some Conservative MPs and private broadcasters, namely Quebecor, to continue to question how the CBC spends annual parliamentary appropriations of $1.1 billion. In the affidavit, obtained by The Wire Report from the court, Nollet wrote that should a request pertain to excluded information as well as non-excluded information, the broadcaster endeavors to release the non-excluded information. He noted that, between 2007 and 2009, the Crown corporation received 893 access-to-information requests, and since that time, 834 have been dealt with. Nollet wrote that of those 893 requests, only 188 were either refused or granted with omitted information under section 68.1 of the act. The affidavit provides 13 examples of requests and justifications for each individual refusal by the CBC. In an additional statement of facts filed with the court, Nollet pointed out that the CBC is a Crown corporation that operates at arm’s length from the Canadian government and wrote that subjecting the CBC to the Access to Information Act is contrary to the arm’s length principle. The arm’s length principle has applied to the CBC for six decades, he wrote, and the application of the Access to Information Act to the broadcaster would indicate that all information in its possession is government information. “It would expose all past, present and future CBC records, whether gathered for administrative, creative, journalistic or programming purposes to access applications subject to very limited exceptions,” he said. Nollet wrote that access requests could be requested seeking board documents, consultant reports, contracts, journalistic research and, potentially, the identity of confidential sources as well as the information provided by them. He specified that “CBC information in not government information”—because it pertains to the Crown corporation’s role in programming, commercial activities as well personal information it possesses. Prior to being placed under the Access to Information Act, Robert Rabinovitch, former president and CEO of CBC/Radio-Canada, sought to maintain the broadcaster's independence from the act. In a letter dated April 30, 2004, which was attached to court documents filed in November 2009, Rabinovitch wrote that, despite government ownership and public funding, “the CBC is not intended to be subject to government control.” Rabinovitch said the CBC was an instrument supporting public policy and called for the recognition of the importance of a free press in a democracy. “The CBC cannot, and must not be identified with the government and cannot, and must not, be anything but fully and completely independent of the government of the day,” he wrote. Nollet wrote in the statement of facts that to remain a credible public broadcaster that represents the interests of the public, the CBC must maintain a distance between itself and the government. Forcing the CBC to reveal information would place it at a competitive disadvantage, he added. “CBC will be forced to reveal the type of information that the private sector keeps confidential without having a reciprocal right to disclosure from competitors,” he wrote. Although a court proceeding is under way, the House of Commons ethics committee is also studying the issue, with Quebecor CEO Pierre Karl Péladeau scheduled to appear at a meeting Thursday morning. At an ethics committee meeting last week, Liberal MP Scott Andrews expressed concern about Quebecor's information requests to the CBC. Andrews noted that the CBC is required to disclose information as a publicly funded broadcaster but that Quebecor, a private broadcaster, is not. Andrews said this creates an uneven playing field. Former TV producer Howard Bernstein told the committee meeting that the CBC should “come clean” and give up its court battle to keep some information secret. He said the CBC’s resistance to releasing requested documents is not due to proprietary or programming issues but for fear of public embarrassment. The best defence for the CBC now is to become completely transparent, Bernstein said. “I cannot agree with the CBC when they say that the release of this information would put them at a disadvantage,” he told the committee. dgrenier@thewirereport.ca

CBC says subjecting it to ATIP requests goes against principle of ‘arm’s length’ agency

Broadcast | October 17, 2011

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