The day before Parliament adjourned for a two week Easter Break, my Private Member’s Bill C-461, “The CBC and Public Service Disclosure and Transparency Act,” passed Second Reading in the House of Commons by a vote of 155-127.  I was surprised and disappointed by the closeness of that margin.

The debate preceding the vote was similarly disappointing, focusing on conspiracy theories as to why the Bill was being introduced rather than on the merits (or the deficiencies) of the legislation.

Regarding the CBC, the Bill corrects a well-recognized defect in the “Access to Information Act,” which allowed the CBC to skirt the authority of the Information Commissioner.  This resulted in well publicized litigation between the two parties: both the Federal Court and the Federal Court of Appeal ruled against the CBC and determined that when a dispute existed, the CBC must disclose the documents to the Information Commissioner for a determination.  PMB C-461 corrects the defect and reinforces the Courts’ rulings. It also recognizes the uniqueness of a public broadcaster and therefore adds protection in the form of a prejudice test.  CBC would not be subject to disclosure, if it would result in an injury (prejudice) to its competitive, programming or journalistic independence.

The NDP predictably took the position that the legislation is an attack on the CBC and voted against it.  Although the Liberal Access and Privacy Critic voted in favour of the Bill, the rest of his caucus similarly voted “nay.”

Yesterday, I appeared before the House of Commons Standing Committee on Access, Ethics, and Privacy to explain and defend the Private Member’s Bill.

The Bill is not an attack on the CBC.  Transparency is not the enemy of the public institution, opaqueness is.  Transparency leads to trust, trust that there is proper stewardship over public resources.  Opaqueness leads to mistrust, suspicion that the government institution is, or at least might be, exercising improper stewardship.  CBC has its detractors to be certain; part of the mistrust is the suspicion that inevitably results from secrecy.  This legislation promotes transparency, accountability and ultimately the trust that the CBC is, or at least can be, good stewards of taxpayer resources.

The Parliamentary Secretary to the Minister of Justice indicated at Second Reading that although the Government supports this part of C-461, they are proposing a most unhelpful amendment.  They want to remove documents regarding journalistic source privilege from the ambit of the Act through an “exclusion.”  I fully support, conceptually, protecting journalistic source confidentiality; the problem is that I am not sure it can be drafted given the broad powers given to the Information Commissioner under s.36 of the “Access” Act.

That Section empowers the Commissioner to compel persons, take evidence, enter government offices without warrant and examine ANY record and that “no such record may be withheld from the Commissioner on any grounds.”   How the lawyers at the Justice department believe they can draft an exclusion that can coexist with the unfettered discretion afforded the Information Commissioner remains a mystery to me.  Moreover, said legal advisors seem unaware of the 2010 Supreme Court of Canada decision in “R v. National Post”.  The High Court held that protection of confidential journalistic sources is not absolute and must be weighed against other factors including the investigation of a crime.  Accordingly, a journalist’s claim for protection of confidential sources must be assessed properly using a case-by-case model of privilege employing a four criteria test developed by esteemed Professor Whigmore.

Who is going to apply the four pronged Whigmore test to determine (as it will in most cases) that source privilege must be protected if CBC is to be given an exclusion?  Is CBC to be party to, and adjudicator of, disputes to determine if journalistic source privilege is applicable?

Sadly, if the Justice lawyers are able to amend C-461 in the manner they have indicated they intend to, the answer will be yes.

However, the damage the Justice Ministry intends to inflict upon the “CBC and Public Service Disclosure and Transparency Act” regarding journalistic source privilege is minor compared to its proposed “gutting” of the salary disclosure requirements proposed for all federal government institutions. I will discuss this further in my next blog.

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.