CBC ordered to cough up secret documents

Broadcaster can't withhold them from information czar, court rules.

Photo courtesy of Wikimedia Commons.

CBC has lost the latest round in its battle to keep some internal information secret, particularly from rival private broadcaster Sun Media.

Federal courts have ruled that the public broadcaster can't withhold documents requested under Access to Information legislation from the information commissioner, who has been trying to get copies in order to make a ruling on whether they have to be released to the parties wanting them.

Thirteen of the 16 cases at issue are requests filed on behalf of Sun Media.

The ruling also comes at a time when the CBC has come under increasing attack from Conservative MPs.

The Canadian Press has the story:

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 for review by the information commissioner of Canada.

The case involved 16 requests for information the CBC said it did not have to provide. It cited a provision in the law 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 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 further appeal the decision to the Supreme Court of Canada.

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.

The law, passed in 2006, provided the broadcaster a limited exclusion to protect information that "relates to its journalistic, creative or programming activities.''

CBC argues 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 legal 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 looking at the documents.

The three-judge court of appeal agreed.

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.

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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