Submissions Received by the Task Force

Full Submission

Addendum - Letter from CBC Radio-Canada

From: Canadian Broadcasting Corporation
Sent: August, 2001

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CBC AND THE Access to Information Act

Prepared for
the Access to Information Task Force
Canadian Broadcasting Corporation

STATEMENT OF FACTS

• CBC is a Crown corporation operating at arm’s length from Government.
• CBC is the premier news organization in Canada.
  • The integrity and freedom of its news operations must be protected.
• CBC has relied and will continue to rely heavily on advertising revenue to fulfill its mandate.
• CBC is subjected to considerable public scrutiny and faces on-going requirements for disclosure because of its mandate and because it is regulated by the CRTC.

CBC CONCERNS

Of legitimate concern to the CBC in the conduct of its activities are:

• the protection of the Charter protected right to freedom of the press;
• the protection of journalistic integrity and of sources;
• the protection of journalistic activities from prior restraint;
• the protection of its independence from the government of the day; and,
• the protection of its competitive position.

CBC ORGANIZATION

• CBC operates two main and five specialty television networks and four radio networks in addition to operating services for the North of Canada in a number of indigenous languages, and Radio Canada International.
• Only the CBC English and French main TV and Radio networks receive a parliamentary appropriation.
• All television networks rely heavily on revenue that is generated in the competitive marketplace.

For greater clarity:

• CBC Newsworld, Le Réseau de l’Information, Télé des Arts, the Documentary Channel and Country Canada are specialty TV channels and do not receive any parliamentary appropriation.
• CBC English and French Radio do not carry advertising but operate in a competitive marketplace.

CBC LICENSING

• CBC must apply to the CRTC for its licences, as must private broadcasters.
• When CBC makes licence applications, it is measured by a higher standard than private broadcasters.
• It does not receive preferential treatment.

NATURE OF CBC INFORMATION

• CBC information is not government information.
• Vast majority of information in the possession of CBC relates to programming, commercial activities or personal information.

NEGATIVE EFFECTS

Subjection of the CBC to the Access to Information Act would have the following negative consequences:

• Contrary to the arm’s-length principle, which has applied for six decades to the CBC as a journalistic organization, it would indicate that all information that is in the possession of the CBC is government information.
• It would expose all past, present and future CBC records, whether gathered for administrative, creative, journalistic or programming purposes to access applications subject to very limited exceptions. These include Board documents, consultant reports, contracts of all kinds, journalistic research, the identity of confidential sources and the information provided by them.
• It would place CBC at a serious competitive disadvantage in the marketplace.
  • No other broadcaster has to disclose details of their commercial strategy and operations.
• It would subject information that is the property of third parties that deal with the CBC to access applications.

INDEPENDENCE

• The Broadcasting Act repeatedly asserts the respect for freedom of expression in the journalistic, creative and programming activities of broadcasting undertakings (SS.2(3);35(2);46(5);52(1)), and in particular the freedom of expression and journalistic, creative and programming independence enjoyed by the CBC in the pursuit of its objects and in the exercise of its powers.(s. 35(2)).
• The Access to Information Act’s stated purpose is to provide a right of access to information in records under the control of a government institution in accordance with the principle that government information should be available to the public.
• Although partially funded by parliamentary appropriation, information gathered by the CBC can not be deemed or perceived to be “government information”.
• The distance between CBC and the government of the day is crucial to its credibility as a public broadcaster broadcasting in the interests of the public.

FREEDOM OF THE PRESS

• As a journalistic institution, the CBC benefits from the protected Charter right of freedom of the press. This freedom includes the freedom to gather information.
• Should the Access to Information Act apply to the CBC, other interested parties may use the CBC as an investigative arm of their institutions (police or lobby groups, for example), thus making individuals reluctant to speak to the CBC. Sources and sensitive information, whether broadcast or not, would be subject to revelation.
• This will hamper the freedom of the press of the CBC and may result in a Charter challenge.

COMPETITION

• The CBC provides a service to the public pursuant to the policy of government as stated in s. 3 of the Broadcasting Act and produces a product (programs). In both the provision of service and the production of product, it competes with the private sector.
• Information that is in the possession of CBC is currently subject to revelation under the Access to Information Act when submitted to a government institution, as is information that private sector broadcasters submit to the same institution. All competitors are subject to the same standards.
• Should the Access to Information Act apply to the CBC, only the CBC, among broadcasters, would be forced to reveal information.
• CBC will be at a substantial competitive disadvantage as it will not be on an equal footing with its private sector competitors.
• CBC will be forced to reveal the type of information that the private sector keeps confidential without having a reciprocal right to disclosure from competitors.
• Since the motive of the requester cannot be considered in determining whether or not disclosure will be required and since the standard for prevention of disclosure is very high, information under the control of the CBC may provide a rich source of information for its competitors.
• CBC and providers of programming to the CBC would not be able to protect their intellectual property rights.
• Programming provided to Radio would be particularly vulnerable as Radio does not carry commercials and may be perceived as “not competing”.

EXEMPTIONS

• The onus of justifying a refusal of access is on the institution claiming an exemption. Jurisprudence has developed such stringent tests that CBC could not meet the stringent standards for exemptions, particularly for information of a commercial nature, although harm is likely to result from revelation of information.

CBC INFORMATION WIDELY AVAILABLE

• The CBC is one of the most transparent of Crown Corporations, providing extensive information to Parliament and to government departments which are themselves subject to the Access to Information Act, thus exposing this information to revelation through applications to the particular “government institution.”
• The CBC provides a corporate plan to the Minister of Canadian Heritage for presentation to Parliament. This corporate plan includes a capital budget that must be approved by the Treasury Board.
• The CBC applies to the Governor-in-council for a variety of authorizations.
• The CBC is audited on behalf of the government by the Auditor General.
• The CBC presents an internal audit to the Minister of Canadian Heritage.
• The CBC provides extensive information to the CRTC which holds public hearings and makes the information provided a part of the public record.
• The CBC appears before an array of parliamentary committees to explain various aspects of its operation and programming.
• The CBC publishes an annual report that is available to the public and reaches out to Canadians for their comments through the Internet.
• A CBC ombudsman for each of the French and English networks receives, investigates and reports on complaints from the public.
• The CBC is responsible to the Official Languages Commissioner for implementation of the Official Languages Act.
• The CBC provides ample opportunity through its web site for individuals to ask questions about the CBC.

CONCLUSION

• CBC is fully accountable without being made subject to the Access to Information Act.
• CBC would be damaged by subjection to the Access to Information Act because:
  • the nature of its mandate,
  • its function as an essential organ of the press,
  • its dependence on perceived and real distance from government for credibility, and
  • its competitive concerns.
• The public has ample opportunity to obtain information about the CBC.

Submissions Received by the Task Force