On Wednesday, May 8, the Information Commissioner for Canada, Suzanne Legault, appeared before the House of Commons Standing Committee on Access, Privacy and Ethics to discuss the Main Estimates, the budget needs for the operation of her office. After her presentation she was asked a question regarding C-461. C-461, “The CBC and Public Service Disclosure and Transparency Act,” is my Private Member’s Bill. It attempts to bring greater transparency to the Canadian Broadcasting Corporation and the public service as a whole.
The Information Commissioner was asked specifically about how she felt about exclusions. She indicated that she would be preparing a written brief on the subject because the entire subject matter is complicated. The complexity arises from the use of three words, all starting with the letter “e,” which in common use all mean the same thing. But in the context of Access to Information legislation, the nuances of the respective “e” words are very different.
The words are exclusion, exemption, and exception.
In the context of the “Access to Information Act,” exclusion would mean that the Act does not apply to a certain situation or class of documents. As the Act is inapplicable, the Information Commissioner has no powers of review with respect to the particular situation.
Meanwhile, an “exception” is used to narrow an “exclusion.” The Act generally would not apply “except” in specific situations. This combination is employed in the current 68.1 of the Access Act regarding CBC records:
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.
So the current Act creates an exclusion for CBC’s journalistic, creative, or programming records, but then creates an exception to the exclusion for matters relating to general administration. The Federal Courts have referred to this as “not a model of clarity because the exclusion is subject to an exception” which creates a “recipe for controversy” and eventually leads to expensive litigation.
My Private Member’s Bill repeals the exception to an exclusion clause (68.1) and proposes a discretionary exemption. An “exemption” means that although the documents are not excluded from the Act, they are exempt from disclosure. As the documents are not excluded from the Act, the decisions of Access Officers are fully reviewable by the Information Commissioner.
The Information Commissioner clearly stated her preference for “exemptions” over “exclusions.” She told the Committee that the litigation between her and the CBC over 68.1 “was not about substance. […] CBC argued because it was an exclusion, I did not have a right to review the complaints. […] I was not allowed to review the records.”
She continued: “My personal view as Information Commissioner does not support exclusions to be appropriate as a matter of principle.” Commenting on the Government’s stated intent to amend C-461 to provide exclusion for journalistic confidential source documents, she stated: “I profoundly believe there should be independent review of Government decisions regarding access to information. This does not mean that the information gets disclosed, because still after a review, we can recommend against disclosure.”
Finally, the Information Commissioner indicated that since 2007 she has received 1200 cases (complaints) related to the Canadian Broadcasting Corporation, of which 200 remain outstanding. According to Ms. Legault, not a single one of those files relates to the CBC’s journalistic sources.
Accordingly, it appears to me that the Justice Department’s intended amendments to provide an exclusion to protect journalistic source confidentiality is a solution in search of a problem.
Moreover, as exclusions preempt the Information Commissioner’s ability to review matters and complaints, the inevitable result will be confusion and probable litigation.
I agree with the Information Commissioner that a discretionary exemption is far superior to a blanket exclusion as it is consistent with the purpose of the Access to Information Act as enunciated in section 2: “that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.”
As an Officer of Parliament (not Government), the Information Commissioner is the appropriate person to adjudicate disputes and determine when a discretionary exemption is applicable.