OTTAWA – The CBC has complied with an order by the Standing Committee on Access to Information, Privacy and Ethics to provide documents requested under Access to Information (ATI) by Quebecor Media and the Canadian Taxpayers Federation. But the public broadcaster’s president, Hubert Lacroix, told an audience at the National Press Gallery Monday that the documents were given under protest, and some were sealed.
Lacroix later told reporters that the decision on whether to open the sealed documents is in the committee’s hands. He said it’s the first time the committee has ordered the public broadcaster to release documents that CBC believes should be excluded, due to their competitive nature.
In a news release, CBC says it has obtained a legal opinion concluding that the committee’s order represents an “unconstitutional incursion into the domain of the courts, contrary to the constitutional separation of powers” between lawmakers and the courts. Although CBC finally decided to deliver the documents, it also “formally expressed concerns” to the committee “about some important constitutional questions and boundaries, and we have asked the members of the Committee” to read the legal opinion “and reconsider their course of action.”
In his speech, Lacroix said, “This opinion from law firm Borden Ladner Gervais…concludes that we have excellent arguments to contest the legitimacy of the Committee’s request for documents. On the other hand, you probably heard the Parliamentary Secretary to the Prime Minister (MP Dean Del Mastro) saying that we would be in contempt of Parliament if we didn’t hand over the requested documents.”
As Lacroix explained, the CBC has historically looked to the Broadcasting Act for guidance on what can be excluded from ATI requests. “(T)o maintain the principle of our editorial independence, which is enshrined in the Broadcasting Act, certain kinds of information have been deliberately and explicitly excluded from the Access to Information Act.”
Section 68.1 of the Broadcasting Act excludes documents relating to “journalistic, programming and creative activities.” Lacroix says that because the public broadcaster operates in a competitive “ecosystem,” with 35% of its revenue “coming from our own activities and commercial initiatives,” the documents in question reveal “highly sensitive competitive information.”
Included in the “sensitive” category are the salaries of well-known CBC journalists such as Peter Mansbridge and Céline Galipeau, the “programs we have in development, or details of our specific marketing or local service plans. The Broadcasting Act prevents even the Minister of Finance, the President of the Treasury Board and the Minister of Canadian Heritage… from viewing this kind of information. Why then should our direct competitors have access to it?”
However, in a report earlier this month, The Hill Times online quotes Del Mastro, a member of the committee, as saying the committee would examine the documents in-camera. They “aren’t going to be publicly released, (journalists are) not going to get your hands on them, nor is anyone else going to see them, nor are the contents of those going to be subject to or part of the report that’s in fact produced.”
Meantime, as CBC appeals to the committee to “change its course of action,” the Federal Court of Appeal is deciding whether the broadcaster must release the same documents to Information Commissioner Suzanne Legault. The court is considering, says Lacroix, “the matter of who should have access to documents specifically excluded from Access to Information under (section) 68.1.”
"Let me emphasize — this matter isn’t really about the information requested by the committee. This is, for us, about the critically important concept of independence from political influence and our ability to act — as we have always done as a public broadcaster — within a competitive broadcasting ecosystem," added Lacroix.
CBC/Radio-Canada is scheduled to appear before the Standing Committee on Access to Information, Privacy and Ethics on November 24.
