CBC loses key court battle on access-to-information

The Federal Court of Appeal has upheld a Federal Court decision from last year that gave the Office of the Information Commissioner the authority to order CBC/Radio-Canada to produce records. The CBC argued during the proceeding that section 68.1 of the Access to Information Act allows it to withhold documents from the public and the information commissioner related to its creative programming or journalistic activities. The public broadcaster refused to disclose documents to the information commissioner when they were requested last year and has since been criticized for its slow responses and high refusal rates to public requests for information. Federal Court of Appeal Justice Marc Noël wrote in a decision Wednesday that the exception does not provide the CBC with the authority to hide documents from examination by the information commissioner. “The existence of the exception invites the commissioner to exercise her power of examination,” the decision said. “Absent a contrary demonstration, a record that is under the control of a government institution and that can reveal information that is not excluded from the application of the Act is a record to which the Act applies.” Information Commissioner Suzanne Legault has argued that she should be permitted to view the documents to determine whether the CBC can exempt them under section 68.1 of the act. At a Federal Court of Appeal hearing in Montreal on Oct. 18, Christian Leblanc, a Fasken Martineau lawyer representing CBC, told the court that some of the Crown corporation’s documents are sensitive and, to maintain its independence and credibility, they cannot be released. Yannick Landry, counsel for the information commissioner, told the court that by allowing the CBC to refuse requested documents without verification, the court is limiting the commissioner’s power. In the unanimous decision supported by Justice Johanne Trudel and Justice Robert M. Mainville, the court dismissed the public broadcaster’s appeal and said it is difficult to see any prejudice caused if the commissioner was to view the records. Noël wrote he does not share CBC’s concern about harm that might result from the revelation of journalistic sources to the commissioner. “In my opinion, this concern is based on a misreading of the decision at first instance,” he wrote. “I do not read the Federal Court decision as requiring that all exclusions be treated in the same manner or that the Commissioner is entitled to be given access to records regardless of the exclusion being claimed.” The court decision said the exclusions under Section 68.1 do not pertain to records but to information. “The nature of the exception is such that it may overlap with the excluded information with the result that a review by the Commissioner is required to give effect to the exception,” Noël wrote. He added that no conflict arises from a refusal to an information request based upon the “journalist-source privilege” and the exception provided for in section 68.1. “The identity of journalistic sources cannot clash with the exception relating to general administration, regardless of the scope attributed to this exception,” the decision said. “In these circumstances, the only conclusion possible if one gives effect to the Federal Court judge’s reasoning is that 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.” In a statement issued Wednesday, Hubert T. Lacroix, president and CEO of CBC/Radio-Canada, said the decision supported the Crown corporation’s position on protection for journalistic sources. “We are pleased to report that the Court declared an exclusion for journalistic sources to be absolute and that this type of information falls outside the commissioner’s power of examination,” Lacroix said. The CBC is analysing the ruling, he said, but he did not say whether the broadcaster intends to appeal it. Noël added that he does not believe the Federal Court's interpretation of Section 68.1 can be challenged on the basis of parliamentary committee debates that preceded its enactment. The CBC had raised statements by former information commissioner John Reid, who had warned committee members that section 68.1 could stop him from accessing records that contain excluded information. Noël acknowledged that the former commissioner’s concern demonstrates that section 68.1 can be subject to interpretation. “But it is the courts’ role to determine the reading that best reflects Parliament’s intention,” he wrote. The court decision added that it is the commissioner’s role to determine whether the exception applies and to exercise the power vested in her by the act. The decision marks a second loss for the public broadcaster in recent days. The CBC was forced to submit documents, which it has excluded under the Access to Information Act, to the House of Commons ethics committee last week. At a House ethics committee meeting this month—boycotted by NDP and Liberal MPs—Conservative MP Dean Del Mastro, the parliamentary secretary to the Prime Minister, proposed a motion that would require the CBC to produce withheld redacted and unredacted documents to Parliament by Nov. 14. The documents covered requests from the Canadian Taxpayers Federation and Quebecor Media Inc. Lacroix is scheduled to appear as a witness at the ethics committee Thursday morning. dgrenier@thewirereport.ca

CBC loses key court battle on access-to-information

Broadcast | November 23, 2011

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