Remarks by the Information Commissioner of Canada
Standing Committee On Access To Information, Privacy And Ethics

Bill C-461, An Act to amend the Access to Information Act and the Privacy Act
(disclosure of information)

Wednesday, May 29, 2013

Check against delivery

Good afternoon.

Let me begin by thanking you for inviting me to speak to you today in relation to your study of Bill C-461: An Act to amend the Access to Information Act and the Privacy Act (disclosure of information).

This Bill proposes the repeal of section 68.1 of the Access to Information Act (Act) which excludes information relating to the Canadian Broadcasting Corporation (CBC) “journalistic, creative or programming activities” subject to an exception for information relating to its general administration.  The Bill would replace that exclusion with a new exemption which will allow CBC to withhold records which could reasonably be expected to prejudice the “journalistic, creative or programming independence” of the CBC.

At the outset, I would like to describe briefly the general structure of the Act, the limits to the right of access and the powers given to my office.

The Access to Information Act creates a right to access information under the control of government institutions, subject to specific and limited exceptions. The Act limits access by way of exemptions and exclusions.

Exclusions provide that the Act does not apply to certain records or information.  The Act also includes various exemptions which permit or require institutions to withhold a range of records and information.

The Act gives the Commissioner broad investigatory powers including access to all the documents under the control of a federal institution to which the Act applies. The Commissioner has a broad power to require production of these records.

Thus, when an exemption is invoked by an institution, the Commissioner has access to the documents in their entirety. However, where an institution invokes an exclusion, access to the underlying information or records depends on the nature of the exclusion relied on by the institution.

The Commissioner’s access to records and information which have been identified by the CBC as falling within the exclusion found in section 68.1 was at issue before the Federal Court of Appeal at the time of my appearance in October 2011.  In November 2011, the Federal Court of Appeal rendered its decision.

The extent of the Commissioner’s power to review records over which CBC had applied the exclusion in s. 68.1 arose in the context of a number of investigations into complaints about the application of the exclusion by the CBC.

CBC challenged the Commissioner’s power to compel the production of documents that it claimed were excluded by s. 68.1 of the Act.  On appeal, the Court of Appeal confirmed that the Commissioner is allowed access to the records to determine whether or not the information fell within the exception for information relating to the general administration of the CBC.  With respect to information about a journalistic source, the Federal Court of Appeal observed:

74 (...) The identity of journalistic sources cannot clash with the exception relating to general administration, regardless of the scope attributed to this exception. In these circumstances, the only conclusion possible if one gives effect to the Federal Court judge’s reasoning is that the exclusion for journalistic sources, like the exclusions provided in sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record – or the part thereof – revealing this type of information would be exempt from the Commissioner’s power of examination.

In its decision, the Court of Appeal resolved the scope of the Commissioner’s power to compel the production of the records to which CBC has applied section 68.1. What the decision does not resolve is the scope of the exception to the exclusion and the meaning of terms used in section 68.1, such as the "journalistic, creative or programming activities". Subsequent litigation on these issues cannot, therefore, be excluded.

Before I discuss the specific modifications proposed by Bill C-461, I think it is important to emphasize that the challenges related to access to information are complex. They demand thoughtful, unified action and are  not amenable to a "piecemeal" solution.

Like my predecessors, I have more than once observed that the Act requires modernization to bring it in line with more progressive national and international models.  While it is true that the Act was considered state of the art legislation when it received Royal Assent in 1982, it is now significantly outdated.

While acknowledging the need to amend the law, I maintain that it should not be done in a disjointed way since this leads to issue-specific amendments which erode the Act’s status as a law of general application.

At the very least, the structure of the Act as a whole must be considered when amendments are proposed. We must examine not only the specific interests to be protected by changes or additions to the law but also the spirit of the law, the way in which it is structured and its general framework. The chosen approach must in my view preserve the law’s character as one of general application.

The amendments proposed by Bill C-461 in relation to the CBC reflect what I suggested when I appeared before this committee in October 2011.

At this time, Bill C-461 proposes the repeal of section 68.1 and the insertion of a discretionary injury-based exemption that would permit CBC to withhold information that could reasonably be expected to prejudice the Corporation's journalistic, creative or programming independence.

There is no reason to believe such an exemption would not adequately protect journalistic sources.  A discretionary injury-based exemption will ensure requesters’ rights to an independent review process.  

To be clear, any information or records obtained by my Office are reviewed solely for investigative purposes. Indeed, the ATIA confidentiality requirements are very strict and do not allow the disclosure of any information during the performance of my duties or functions.

Other legislative measures could be taken to further protect specific types of information held by the CBC. The document entitled “Background Note” refers to other legislative options.

One possibility would be the inclusion of an injury-based discretionary exemption with a mandatory exemption for journalistic sources. My Office could also implement additional administrative measures, including limiting the number of employees delegated to work on the investigations pertaining to possible journalistic sources.

In concluding, I ask the Committee to consider how these proposed amendments to the Act will apply to the more than 200 complaints currently under investigation. Will it be applicable to ongoing files (requests and complaints) or only to new requests?

In my view, it would be better that the new provisions be applicable to existing complaints and requests since a requester may simply make a new request thereby benefitting from the application of the new provisions.

I would be pleased to answer your questions.