Canadian Broadcasting Corporation v. Canada (Information Commissioner), 2011 FCA 326

June 2014

Summary: This case addresses some procedural aspects of the “journalism” exclusion applicable to the Canadian Broadcasting Corporation (“CBC”) in the Access to Information Act.  While this appeal was about the Access to Information Act, the Privacy Act treats the journalism exclusion similarly.

Facts: The CBC became subject to the Access to Information Act and the Privacy Act in 2007.  Both statutes have an exclusion for the CBC.  In the Access to Information Act, the Acts do not apply to any “information” under the control of the CBC that “relates to its journalistic, creative or programming activities, other than information that relates to its general administration” (s. 68.1).  The Privacy Act has a similar exclusion for information relating to “journalistic, artistic or literary purposes”, so long as the information is not collected, used or disclosed “for any other purpose.” 

This case concerned sixteen access requests that were refused by the CBC and that were the subject of complaints to the Information Commissioner.  Most of the requests concerned the disclosure of information directly or indirectly related to programming or creative activities but that also touched on financial matters, such as, for example, the cost of producing a particular program or fees paid to people participating in current affairs shows.  In refusing access to most of the records, the CBC did not distinguish between the three available types of exclusions, instead refusing access because the request was related to “journalistic, creative or programming activities” without explanation as to the exact nature of the exclusion being invoked.  Finally, for 13 of the 16 files, the CBC did not examine any records to justify the refusals, but simply determined that the exclusion applied after reading the access requests.

The Information Commissioner wanted to examine the CBC’s records to determine whether any of the exclusions applied.  The CBC resisted such an order, alleging that invoking the exclusions has the effect of depriving the Information Commissioner of her power to examine the documents that are the subject of the refusal.  The CBC applied to Federal Court to set aside the Information Commissioner’s order that the CBC produce those records, but the Federal Court sided with the Information Commissioner. The CBC appealed to the Federal Court of Appeal.

Result: The Federal Court of Appeal rejected the CBC’s appeal.

Decision: The Court of Appeal began by rejecting an argument by the Information Commissioner that she had the power to examine any record regardless of whether the record was subject to the Act.  The Court concluded that the Information Commissioner does not have access to all excluded records.  If the Information Commissioner has the power to order the CBC to produce the records at issue, it is because of s. 68.1 of the Access to Information, not an inherent power to require the production of any record.

The Court of Appeal went on to consider s. 68.1 of the Access to Information Act.  The Court of Appeal made three preliminary observations.  First, the CBC did not distinguish between “records” and “information.”  Section 68.1 only excludes “information”, not entire records.  The CBC was therefore required by the Act to examine all requested records and disclose any part that does not contain excluded information.  The CBC in this case was ignoring its duty to examine records before refusing to disclose them.  Second, the three categories of information excluded under s. 68.1 can overlap with the information relating to the CBC’s general administration.  This means that the release of information cannot be automatically refused because it relates to one or the other of the three excluded subjects.  The CBC must also consider the scope of the exception for general administration.  Third, the CBC must specify which of the three exclusions it is invoking when refusing to disclose a record: it cannot simply cite all three without any analysis.

The Court of Appeal concluded that the wording of s. 68.1 of the Access to Information Act means that the Information Commissioner must be able to examine records to assess whether they have been properly excluded.  The three exclusions in s. 68.1 are subject to an exception for information about general administration.  The existence of this exception invites the Information Commissioner to exercise her power to examine records to determine whether the exception for general administration information applies.

Finally, the Court of Appeal addressed the issue of journalistic sources.  The Court of Appeal recognized that there is a “journalist-source privilege” in s. 68.1.  The Court of Appeal concluded that the identity of journalistic sources cannot clash with the exception relating to general administration.  Therefore, the exclusion for journalistic sources is absolute.  In the event that a request seeking disclosure of journalistic sources was made, a record – or the part thereof – revealing this type of information would be exempt from the Information Commissioner’s power to examine a record.

Principles:

  1. The Information Commissioner has the power to examine all records that are subject to the Act.
  2. A government institution has a duty to review a record before deciding not to disclose it in response to an access request.  The government institution cannot simply refuse to disclose a record based on its reading of the access request itself.
  3. The three categories of information excluded under s. 68.1 of the Access to Information Act can overlap with the information relating to the CBC’s general administration.  This means that the release of information cannot be automatically refused because it relates to one or the other of the three excluded subjects.
  4. The CBC must specify which of the three exclusions it is invoking when refusing to disclose a record: it cannot simply cite all three without any analysis.
  5. The Information Commissioner has to be able to examine the record in order to determine whether the exception for “general administration” information applies. The same principle would apply to the Privacy Commissionerwith respect to s. 69.1 of the Privacy Act.
  6. The privilege for protecting journalistic sources is absolute and, in the event that a request seeking disclosure of journalistic sources was made, a record – or the part thereof – revealing this type of information would be exempt from the Information Commissioner’s power to examine a record.
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