Canadian Broadcasting Corporation v. Canada (Information Commissioner): Information Commissioner, CBC, and the right to know

The Canadian Broadcasting Corporation (“CBC”) is under fire from Canadian Information Commissioner Suzanne Legault (“Information Commissioner”) for recent decisions refusing disclosure requests. While it is usually parliamentarians and public servants who are the subject of Ms. Legault’s criticism, it is now CBC who has been put in the hot seat by Ms. Legault.

CBC vs. Information Commissioner: Part I
At the heart of this standoff between the Information Commissioner and CBC is a 2010 decision at the Federal Court. In Canadian Broadcasting Corporation v. Canada (Information Commissioner), at issue was the authority of the Information Commissioner to order the CBC to produce records under the Access to Information Act (“Act”).

Previously, CBC was subject to information requests until 2007 when the Act was amended to include the following exclusion under s. 68.1:

This Act 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.

Subsequently, between December 2007 to June 2009, CBC received several access to information requests which were refused under s. 68.1. The CBC’s refusal letters identified the Information Commissioner as the person to submit a refusal complaint, and the Information Commissioner received 16 such complaints. After pursuing an investigation into the complaints, the Information Commissioner requested CBC’s disclosure of several documents. The CBC again refused the Information Commissioner’s request under s. 68.1.

In response to this request by the Information Commissioner, CBC brought an application for judicial review at the Federal Court “seeking a declaration that the Commissioner does not have authority to order access to the CBC records, by order or otherwise, on the ground that those records fall under the exclusion set out in section 68.1 of the Act.”

The Information Commissioner challenged the CBC arguing s. 68.1 provides the Information Commissioner with the “authority to examine the records in order to determine whether she may exercise the authority provided by the Act” relating to the general administration of the CBC. The Information Commissioner argued further that “in order to determine her authority, the Act provides her with the right to examine all CBC records, including records that, in the opinion of the CBC, contain information relating to its journalistic, creative or programming activities”.

Justice Boivin: General Principle of Public Disclosure Reigns
Applying Dunsmuir v. New Brunwick, Justice Boivin determined the correctness standard of review would be used given this case involved a question of true jurisdiction (the Information Commissioner’s jurisdiction over the CBC).

From this point CBC’s request was evaluated within the purpose of the Act. Due to s.2 of the Act, Justice Boivin determined the Act’s purpose to be to “provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, subject to limited and specific exceptions and exclusions.”

In light of the case law, Justice Boivin ruled the spirit of the Act was a general principle of public disclosure, and non-disclosure of government controlled documents should be the exception.

Justice Boivin’s decision was buttressed by several factors. First, the quasi-constitutional status of the Act, as proclaimed in Canada (Privacy Commissioner) v Canada (Labour Relations Board) led to his determination. Second, the importance of the Information Commissioner’s independent and impartial function was also emphasized by Justice Boivin. Furthermore, Justice Boivin ruled a refused complainant is “entitled to an objective and independent investigation and be informed of the Commissioner’s findings regarding the results of the investigation.”

As such, Justice Boivin ruled the restrictive interpretation of s. 68.1, as advocated by CBC, ran contrary to this purpose of the Act. Justice Boivin ruled the “exception to the exclusion” found within s. 68.1, meaning disclosure is required for information related to CBC’s “general administration”, is necessary for the Information Commissioner to determine her jurisdiction and therefore disclosure is necessary in this case.

In the end, Justice Boivin ruled the Information Commissioner serves as “a neutral entity, investigations are private and confidential, and the review must be objective.” Therefore CBC’s disclosure would not amount to unnecessarily revealing private records, and this determination hinged upon the distinction between “sharing” information with the (private, neutral, and investigative) Information Commissioner. Justice Boivin ruled that only after the Commissioner had conducted her investigation and made her conclusions could the CBC seek a judicial review of her decision. For these reasons Justice Boivin rejected CBC’s request for judicial review.

CBC: Disclose Your Information to the Information Commissioner!
Not only does it appear the CBC will appeal Justice Boivin’s decision to the Federal Court of Appeal, but CBC President Hubert Lacroix is threatening “to go all the way to the Supreme Court of Canada to challenge Legault’s authority.”

Given the public nature of the CBC, this case will be closely watched by many interested parties. In times of increasing federal budget deficits and economic prudence, the CBC has become an increasing target of heated debate regarding public expenditures. Recently, Minister of Canadian Heritage James Moore announced the CBC will likely face a significant 5 percent cut. Some argue this cut is nowhere near enough, while others argue it may be ill advised.

CBC serves a vital role within Canada’s unique democracy as a historic, independent, and domestic public media source. A healthy democracy requires a robust, independent, and impartial media, a role well played by CBC, and that role may sometimes require journalists to keep some information privy such as “story sources” (an issue mentioned in passing by Justice Boivin).

However, regardless of where on this debate’s spectrum you fall, the CBC is being funded by Canadian tax-payers. In the post-2008 economic world, the world has changed and it is imperative the CBC adapt within it. One of the disclosure requests refused by the CBC related to how much it paid for an executive to study at Harvard University.

Thus, the issue in this case is how CBC is administering certain funds, and their secretive position while spending these public funds is as unacceptable as it would have been for parliamentarians and civil servants. Even if it was a gray area, it is not for us nor them to decide but rather the Information Commissioner whose position was created for this very purpose, as highlighted by Justice Boivin.

Given the Information Commissioner’s investigative role and capacity to rule on her jurisdiction, Parliament clearly intended to provide Ms. Legault with significant degree of deference, discretion, and independence. As such, allowing her to serve a private investigative role is an essential compromise between full and non-disclosure. CBC must change its position and privately disclose the information requested by the Commissioner and let her decide. If the Information Commissioner makes a decision after the necessary information is privately disclosed to her, only then should the CBC seek judicial intervention, rather than stonewalling her from the get-go. CBC’s credibility is being hurt by its current position.

Justice Boivin got it right in this decision and a general principle of public disclosure should reign, exclusions should be extremely rare, especially when we are talking about Canadian tax-payer money. Nevertheless, unless there is a change in CBC’s unacceptable attitude, it looks like this case is headed to the Supreme Court.

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