CBC in legal tussle with information ombudsman

The Canadian Broadcasting Corporation has locked horns with Canada's information ombudsman over the public broadcaster's right to keep information about its journalism and programming secret.

Inthe first test of a new provision of the Access to Information Act, the information commissioner of Canada issued a subpoena to CBC ordering it to hand over hundreds of pages of sensitive records.

In response, the CBC went to federal court this week, asking a judge to rule on whether the commissioner has any right to inspect the records and review the decision to withhold them.

"We firmly believe that the protection of our editorial independence and of journalistic sources intended by Parliament can only be effective if the commissioner cannot order the production of the records we've excluded," said CBC spokesman Angus McKinnon.

At issue are 16 of the hundreds of information requests the broadcaster has received since Sept. 1, 2007, when the CBC first came under the provisions of the Access to Information Act.

The broadcaster refused to turn over any material in the 16 cases, citing a new section of the act that specifically protects information "that relates to its journalistic, creative or programming activities."

When the CBC was brought under the act, Section 68.1 was created to ensure that reporters' sources would not be exposed and competing networks would not have access to the creative planning behind new television shows.

But those requesting the informationcomplained to the information ombudsman, asking for a second opinion about whether the withheld records legitimately fall under Section 68.1.

Suzanne Legault, the acting information commissioner, says the fundamental issue is whether the CBC has the unchallenged authority to decide which of its records to withhold or whetherits decisions can be reviewed.

"It's such a fundamental tenet," Legault said in an interview. "You need an independent third party."

Requesters seek records

The 16 requests named in the subpoena cover a broad range of material. Some examples:

• A copy ofauditsfrom thelast three Olympics performed by Deloitte Touche or equivalent auditing organizations.
• A copy of all records on the costs of running the contest to find the new Hockey Night in Canada theme song.
• A copy of all records concerning the handover of the position of CEO from Robert Rabinovitch to Mr. Hubert T. Lacroix.

"The issue is about whether or not these records are covered by the act," McKinnon said.

"We are fully committed to our obligations to Canadians and to the act, and believe that we've been doing a good job respecting the spirit of the exclusions defined under Section 68.1 in the most appropriate manner."

TheCBC frequently criticizes federal departments for withholding or censoring documents under the Access to Information Act.

The court case is also expected to raise sensitive legal issues surrounding the protection of journalistic sources, which may be protected under Section 2 of the Charter of Rights and Freedoms. A judge may have to determine whether any such protection trumps the commissioner's right to review CBC decisions on disclosure.

Thirteen of the 16 cases cited in the subpoena are requests filed by Ottawa legal expert David Statham on behalf of Sun Media, which publishes a chain of newspapers and has written numerous freedom-of-information stories on the expense accounts of CBC executives. Statham filed 399 freedom-of-information requests in a three-month period in 2007.

Statham, of the Michel Drapeau law office, declined to comment on the legal skirmish, except to say he was "pleased the commissioner is taking action."

Legault noted she has received at least 90 other complaints from requesters over the CBC's refusal to divulge records.

"It's a fundamental issue and we really need to have it resolved by the court," she said in an interview.

No dates have been set for Federal Court hearings, but legal insiders say the issue is unlikely to be resolved before Christmas.

The CBC is among about 70 Crown corporations and agencies that were brought under the Access to Information Act after the Conservatives won office in 2006 on a campaign of accountability.

The broadcaster was soon swamped with hundreds of requests, which it did not respond to within legislated time frames, prompting a separate Federal Court case in the spring that also involved Statham.

The law requires a response within 30 days, though departments can takeextensions under certain conditions. Of the 399 requests Statham filed to the CBC between Sept. 5 and Dec. 12, 2007, 389 got no response within 30 days and no extensions were taken.

Judge Yves de Montigny has yet to rule on the matter.

The Access to Information Act allows anyone who lives in Canada to ask for information under the control of the federal government for an initial $5 fee.