Private members' Bill puts CBC under microscope, while other Access to Information requests languish.
from Canadian Journalists for Freedom of Expression
In February 2013, the House of Commons voted in favour, on first reading, of a bill that would change the Access to Information Act (ATIA) and the Privacy Act concerning the Canadian Broadcasting Corporation. It is scheduled for second reading debate and vote during the week of March 25.
Canadian Journalists for Free Expression is concerned that this bill will jeopardize the journalistic independence and integrity of the CBC and could reveal the identity of confidential sources used by its reporters. The bill is unnecessary, it may create greater uncertainty about the CBC’s disclosure obligations, and it appears to be aimed at doing damage to the CBC because it favours the commercial interests of private media outlets that compete with the CBC.
Private member Bill C-461 was introduced by MP Brent Rathgeber (Edmond-St.Albert) who is on record as saying that he sees no need for public broadcasting today. For several years Rathgeber has used Parliamentary queries and access to information requests to try to obtain information on CBC spending on, among other things: hospitality, food, drink, hotels and transportation at foreign bureaus; the salaries, allowances and expenses for Peter Mansbridge, George Strombolopolous, and Hubert T Lacroix; and payments to Rick Mercer.
This language would reduce protections for the CBC’s journalists, weaken the CBC’s independence and position in the marketplace, create greater uncertainty about what it has to disclose and, in the future, generate time-consuming and costly court cases.
Rathgeber says his bill, which he calls “The CBC and public service disclosure and transparency act,” will bring greater accountability to the CBC and bring a needed clarity to section 68.1 of the ATIA. Currently, under section 68.1 of the ATIA, the CBC is expected to comply with requests for information about its general administration, but not about its journalistic, creative and programming activities. Section 68.1 says:
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.
This is cumbersome phrasing. The CBC is excluded from the Act, but with an exception, for matters of general administration.* This is why the courts have said that 68.1 is “not a model of clarity.” And why MP Rathgeber says his bill is necessary. It would repeal 68.1, ending the exclusion the CBC has had for journalistic, creative and programming activities, and substituting an exemption:
18.2 The head of the Canadian Broadcasting Corporation may refuse to disclose any record requested under this Act if the disclosure could reasonably be expected to prejudice the Corporation’s journalistic, creative or programming independence.
This language would reduce protections for the CBC’s journalists, weaken the CBC’s independence and position in the marketplace, create greater uncertainty about what it has to disclose and, in the future, generate time-consuming and costly court cases.
CJFE wants more disclosure from governments. In fact our recent submission to the Information Commissioner (A Hollow Right) calls for extending the ATIA to cover more government bodies (such as the House of Commons, the Senate and some Cabinet materials), reducing the redaction of information, limiting delays, and defining exemptions narrowly with appropriate harms test.
Bill C-461 does nothing to promote that agenda. Instead, it would significantly weaken the CBC’s ability to deliver a key component of its mandate: carrying out public service journalism and creating programming completely independent from the government.
That mandate was given to the CBC by Parliament decades ago and remains in force. To carry it out, CBC journalists must be able to conduct research and prepare programs without pressure to disclose the results prematurely or surrender operational details. The corporation must be able to acquire broadcasting rights and creative content without being required to disclose negotiating positions or strategy. In this respect, arm’s-length public broadcasters differ from other government departments. That is why other parliamentary democracies protect these broadcasters with exclusions like the one current in section 68.1 of the ATIA. Canada should do no less.
Here are some of the reasons we believe Bill C-461 should be defeated:
1 The Bill is unnecessary:
Contrary to the claims of the bill’s supporters, there is no longer a lack of clarity about section 68.1 of the ATIA. It has been clarified by the courts. By contrast, the wording of C-461’s proposed exemption is no clearer on its face than section 68.1, and if passed would wipe out the benefit of judges’ extensive deliberations on the existing law.
The Information Commissioner took the CBC to court several years ago because of complaints about the CBC’s refusal to release documents citing section 68.1 of the Access Act. The Information Commissioner objected that the decision had been made solely by the CBC. She claimed that that she should have the right to examine records to determine if the information they contain meets the definition of being for journalistic, creative or programming activities.
The Federal Court agreed (September 15, 2009) with the Information Commissioner, and upon appeal by the CBC, the Federal Court of Appeal concurred (November 23, 2011). As a result, the CBC and the Information Commissioner have been working to process complaints with the Commissioner reviewing records to determine if an exclusion applies. Both parties have expressed satisfaction with this understanding.
They both also agree on the one notable exception in this understanding regarding the protection of journalistic sources. The Federal Court of Appeal ruled that the Commissioner’s power of examination will not extend to information that might disclose journalistic sources (“…the exclusion for journalistic sources …is absolute.”)
CJFE believes the current Access law has been clarified and appears to be working. The Information Commissioner recently awarded the CBC an “A’ grade for its outstanding improvement in the timeliness of disclosures under the current ATIA — and the CBC now refuses requests in only 4.2% of cases. Bill C-461 would overturn the clarity and high standard of performance achieved by the Federal Court of Appeal decision. It would create the kind of uncertainty it says it seeks to end.
2 The Bill reduces protection for the CBC:
Parliamentary democracies offer their public broadcasters the protection of an exclusion because it is a stronger protection for their integrity and independence than an exemption.
Under an exclusion, if there is a court case challenging a decision by the Information Commissioner to support the CBC withholding information, a judge would rule simply on whether the documents meet a definition of being journalistic, creative or programming. (The documents could also be severed.)
The result of repealing the exclusion and introducing C-461’s exemption, is that the onus would be reversed. In court the CBC would have to prove, in each and every case, that the release of particular documents would cause harm to the CBC’s independence. Note that harm is not broadly to the integrity of the CBC’s journalistic, creative and programming work, but merely the corporation’s independence, which is usually taken to mean independence from the influence or interference of government and Parliament. This is a very narrow protection, one that is vulnerable to subjective interpretations.
C-461 would effectively undo the decision of the Federal Court of Appeal about the absolute right of the CBC, consistent with Supreme Court of Canada decisions, to protect its journalistic sources.
In other words, if C-461 is passed the CBC will have to argue and prove, in every instance, why journalistic and programming information — including reporters’ notebooks and confidential sources and all other information relating to identifying stories, collecting, editing and presenting them — should not be made public. And C-461 would effectively undo the decision of the Federal Court of Appeal about the absolute right of the CBC, consistent with Supreme Court of Canada decisions, to protect its journalistic sources.
In such a situation, what whistleblower would approach a CBC reporter? How could CBC journalists in good faith promise to protect their sources? How, both commercially and ethically, could the CBC sustain any investigative journalism if the process and the research could be revealed to CBC competitors or to the subjects of CBC investigations?
In fact, a chill would fall upon CBC journalists and the broadcaster’s ability to produce journalism with integrity would be seriously jeopardized. A bill that ostensibly aims to increase accountability would destroy the public broadcaster’s ability to hold government and the powerful to account. CJFE believes that an injury-based exemption is a serious threat to free expression in Canada because it does not sufficiently protect the CBC’s interest as a public broadcaster.
It should also be pointed out that under the current law the CBC is already subject to a level of scrutiny that does not apply to its competitors. Bill C-461 increases this discrepancy. It could cripple the CBC’s ability to do investigative reporting and thus reduce the CBC’s role in Canadian society.
3 Privacy Concerns
C-461 also makes a number of amendments to the Privacy Act, ostensibly to make it consistent with changes it makes to the Access Act. However, it could have a quite unintended consequence. These amendments remove the CBC’s right to exclude privacy information collected for reasons of journalism and instead makes disclosure of that information subject to a test of injury to the CBC’s independence.
The result could be, for example, that in a case of the CBC investigating an organized crime figure, that person could take the CBC to court to force the Corporation to turn over any research they had uncovered about him — even before a report is broadcast. No private broadcaster would be subject to similar provisions. This in itself would be a death blow not just to investigative journalism but to any substantive journalism.
Since the CBC was made subject to the Access Act, the great majority of access requests to the CBC have come from one media competitor seeking information that would often enhance its competitive position — such as the salary of top talent or the amount of a CBC Olympic bid.
We have noticed that since the CBC was made subject to the Access Act, the great majority of access requests to the CBC have come from one media competitor seeking information that would often enhance its competitive position — such as the salary of top talent or the amount of a CBC Olympic bid. We fear that far from being an exercise in accountability, Bill C-461 is designed to weaken the public broadcaster and to strengthen the hand of media competitors for ideological ends. This is hardly the best way to serve accountability or journalism in the public service.