CBC loses court battle to withhold documents

The CBC has lost another key court battle in its efforts to keep internal documents secret.

OTTAWA — The CBC has lost another key court battle in its efforts to keep internal documents secret.

The Federal Court of Appeal unanimously ruled against the public broadcaster Wednesday, saying the CBC is legally required to turn over material to the information commissioner of Canada for review.

The case involved 16 formal requests for information the CBC said it was not required to provide. The corporation cited a provision in the Access to Information Act that allows it to protect certain journalistic, creative and programming material.

The broadcaster also refused to allow information commissioner Suzanne Legault to examine the documents in order to review its decision, after requesters complained.

Legault took the case to Federal Court, winning in 2010 and winning again Wednesday after the CBC appealed.

There was no immediate word on whether the public broadcaster will appeal the decision to the Supreme Court of Canada. The corporation has 60 days to file an application for leave to appeal.

“We are continuing our analysis of the ruling,” CBC president Hubert Lacroix said in a statement.

The CBC became subject to the Access to Information Act in September 2007, and has since been flooded with hundreds of requests, many from a law firm representing Sun Media.

An amendment to the Act, passed in 2006, provided the broadcaster a limited exclusion to protect information that “relates to its journalistic, creative or programming activities.”

CBC argued that the withheld material does fall under this exclusion, and that even the information watchdog — who is bound to keep secret any material she sees — should not be allowed to examine the documents.

A Federal Court judge in 2010 found that the wording of the CBC exclusion, Section 68.1 of the Access to Information Act, “is not, shall we say, a model of clarity.”

However, the judge also ruled the CBC should not sit in judgment on its own decisions to withhold information under Section 68.1, and that the information commissioner has the right to review them by independently examining documents.

The three-judge court of appeal agreed Wednesday. At the same time, the panel affirmed the CBC has the “absolute” right to safeguard journalistic sources — a section of Wednesday’s ruling seized on by Lacroix.

“The Federal Court of Appeal ruled in our favour on the heart of the matter for us — journalistic sources,” he said in a statement.

Legault acknowledged Wednesday’s ruling may restrict her ability to examine some records.

“It’s a good decision,” she said in an interview. “It confirms that I have a right to review the documents.

“However, it makes an exception for journalistic sources, and so that will have to be determined on a case-by-case basis.” Legault said she would not necessarily accept any CBC assertion that a document contains journalistic sources, and that “these matters may end up in court.”

Her office is sitting on about 200 other complaints about the CBC’s use of Section 68.1, which have been held in abeyance pending the federal court process for the initial 16 complaints. She said only a handful of all the complaints pertain to claimed protection of journalistic sources.

The 16 requests at issue in the court dispute cover a broad range of material. Some examples:

• “A copy of the audits of last 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 Mr. Robert Rabinovitch to Mr. Hubert T. Lacroix.”

Thirteen of the 16 cases cited were requests filed by Ottawa legal expert David Statham on behalf of Sun Media.

The public broadcaster has been waging a two-front war on access to information, losing twice in the courts and currently under fire by Conservative MPs and some witnesses at a House of Commons committee examining CBC’s performance in respecting the Act.

Lacroix is to appear Thursday before the committee, which has already received sealed copies of the withheld documents that are at the core of the federal case.

Heritage Minister James Moore called on the CBC to abide by the ruling.

“The CBC has to be open, transparent and accountable,” he said. “The courts have ruled so, the appeal court has ruled so, and that’s how we expect the CBC to act.”

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

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

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