CBC must hand over files to information watchdog

CBC must hand over documents to Canada's information commissioner, the Federal Court of Appeal has ruled in a battle over access to information.
CBC President Hubert Lacroix appears as a witness at a committee in Ottawa on Oct. 25, 2011 to discuss the CBC/Radio-Canada five-year strategic plan. The Federal Court of Appeal ruled Wednesday that the broadcaster has to hand over documents for review by the information commissioner. (Sean Kilpatrick/Canadian Press)

CBC must hand over documents to Canada's information commissioner, the Federal Court of Appeal has ruled in a battle over access to information.

The commissioner has the authority to see documents that the broadcaster argued were excluded from federal access to information laws, Judge Marc Noël said in the court's ruling.

The court dispute was over whether the commissioner had the right to review records CBC wouldn't release.

The CBC said the files are protected because they relate to journalistic, creative or programming activities, and aren't covered under the law. Information Commissioner Suzanne Legault said the documents are covered under the law and that she has the authority to review them.

The commissioner got 16 complaints from people who'd made the requests and weren't satisfied with the CBC's response.

The requested documents range from focus group reports on CBC personalities to records about a CBC application to the CRTC to grant a license for an all-sports channel.

The court decision doesn't necessarily mean that the files will go to the people who made the requests. Legault won the right to review the documents but she could decide the CBC properly applied the exclusions, known as 68.1, the section of the law under which they fall.

Journalistic sources protected

CBC President Hubert Lacroix said in a written statement that the court ruled in CBC's favour on the issue at the heart of the matter for the broadcaster.

"We are pleased to report that the court declared the exclusion for journalistic sources to be absolute and that this type of information falls outside the commissioner's power of examination," Lacroix said.

A spokesman for the broadcaster wouldn't say whether they plan to appeal to the Supreme Court of Canada, saying they are still reviewing the decision.

Legault says there has to be an outside body reviewing the exclusions. Her office has the power to make recommendations, but she can't force anyone to turn over documents. She can challenge them in court, however.

"It's important that there's an independent, objective oversight body that reviews the documents, because that's a fundamental principle of access to information, and that's the way our law is set up," Legault said. "So that the person who receives the request, or the institution who receives the request, is not the ultimate body that makes the decision about whether or not something should be disclosed, if there is a disagreement."

In the ruling, Noël wrote that not all exclusions need to be treated the same way.

"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," he wrote.

Canadian Heritage Minister James Moore, under whose department CBC is funded, said the reason for making access to information laws apply to the broadcaster was "that the CBC has to be open, transparent and accountable."

"The courts have ruled so, the appeal court has ruled so, and that's how we expect CBC to act," Moore said.

Lacroix at committee Thursday

The issue is the subject of a separate parliamentary committee review. Conservative MP Dean Del Mastro, parliamentary secretary to the prime minister, brought the issue this fall to the House committee on access to information, privacy and ethics.

The CBC handed over a set of documents to the committee last week after Del Mastro passed a motion compelling the broadcaster to do so. The documents subject to the court dispute were in sealed envelope that the CBC asked the committee not to open.

Lacroix is scheduled to testify at committee Thursday morning. The committee has already heard that many of the access to information requests come from competitor Quebecor.

The Federal Court of Appeal was reviewing a Federal Court decision CBC appealed. The Federal Court ruled that the information commissioner did have the authority to review the documents. In the decision, Judge Richard Boivin wrote that he was hard-pressed to see what kind of harm would come under an independent review.