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New bill could damage integrity of Canadian public broadcaster

As is clearly stated in our earlier submission to the Standing Committee on Access to Information, Privacy and Ethics (ETHI), Canadian Journalists for Free Expression (CJFE) contends that Bill C-461 is so ill-conceived and potentially damaging to the journalistic integrity of the Canadian Broadcasting Corporation (CBC) that it cannot be saved through amendments, but rather the bill should be withdrawn or defeated.

It has become apparent in the last few days of hearings that the primary goal of the author and the supporters of C-461 is to expose the salaries of employees across the entire civil service. The CBC has been little more than a vehicle - politically vulnerable and an easy mark - to achieve this end. The author of C-461 concedes that he never intended that his bill would produce comprehensive reform of the access to information system. Rather, he now admits that it was designed for “piecemeal” reform - without acknowledging, however, the damage this could cause to the general application of the access law. The author of C-461 concedes that he is willing to amend his bill to protect the inherent free expression rights of the CBC. But he balks at lowering the threshold of his demands for salary disclosure, what he calls the “heart and teeth” of the bill.

CJFE is deeply concerned at this abuse of the legislative process. If Parliament wishes to force disclosure of civil-service salaries, it should emulate other Canadian legislatures and pass a bill that is clear, simple and transparently aimed at achieving that objective. Instead, Bill C-461 seeks to achieve it by stealth, with the collateral damage of making Canada's increasingly discredited Access and Privacy regime even more confusing and susceptible to political manipulation. Whatever members' opinion of the CBC or its executive compensation, they surely do not intend to hamstring its ability to carry out its Parliament-sanctioned journalistic mandate with credibility and integrity. This bill, if passed, would do that. It would also, by cynically invoking transparency and access to obscure its real objective, bring significant discredit to the mechanisms of law-making at a time when Canadians are showing signs of increasing disillusionment with the institutions of government.

Nonetheless, CJFE proposes the following arguments concerning Bill C-461.

C-461 is not needed. The existing law, clarified by the courts, is working well. It provides strong protection for the CBC's confidential sources, its independence from government and its inherent right to freedom of expression.

1. Reforming the Access to Information Act should not be piecemeal, nor done in a disjointed way at the cost of damaging the CBC's journalistic integrity.

2. C-461 would chase whistleblowers away from the CBC, handicapping the CBC relative to other media outlets with the result that important stories about wrong-doing or corruption might never be exposed.

3. Section 19 of the Access Act is not sufficient to protect confidential sources.

4. The Bill's sponsor is incorrect in arguing that an exclusion for the protection of sources (in the current form of s. 68.1 or in a proposed amendment to C-461) will not work because of the examination powers of the Commissioner.

C-461 is not accountability legislation – in fact it weakens the CBC's ability to hold the government and powerful economic interests to account. If passed, this bill will inevitably lead to many more court cases because of its lack of clarity and its failure to provide strong protection for confidential sources and for the CBC's editorial freedom.

BACKGROUND

1) C-461 is not needed
Both the CBC and the Office of the Information Commissioner report that since the Federal Court of Appeal finding of November 2011, outstanding complaints are being resolved without friction or difficulty. The CBC has earned an "A" grade for the timeliness of its access responses.

Bill C-461 would replace a section of the access act which has been thoroughly tested in court. The new law would require several test cases and years of court proceedings to produce clear guidelines for its application. The insight and clarity produced by past years of judicial deliberation on s. 68.1 would be lost.

Under 68.1, as clarified by the courts, a CBC journalist can give assurances to a confidential source or whistleblower that his/her identity will not be up for review by the Information Commissioner and the staff of that office.

2) Reform of the Access to Information Act (ATIA)
Reform is desperately needed for this 30-year-old piece of legislation, but C-461 is not the right approach. What is needed is a comprehensive package of reforms, not some minor tinkering with provisions targeting just one crown corporation. As the Information Commissioner told the Committee on May 29th, there are potential risks in the C-461 approach:

"... challenges related to access to information are complex. They demand thoughtful, unified action and are not amenable to a "piecemeal" solution ... 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."

CJFE has made extensive recommendations for the reform of the ATIA in "A HOLLOW RIGHT: Access to information in crisis," our submission to the OIC's national consultation on the subject. CJFE is prepared to offer any assistance it can should the Standing Committee wish to explore comprehensive changes to the ATIA such as:

• extending coverage of the Act to include the House of Commons, the Senate, and ministers' office
• ending the blanket exclusion for Cabinet documents
• establishing a clear principle to define the scope of the act to cover all government institutions and entities receiving substantial government financing or engaging in government-like functions
• granting order-making powers to the Information Commissioner
• include in a reformed act a "duty to create records" concerning deliberations, communications and policy decisions
• creating mechanisms for reward and penalty to reduce the amount of redaction of documents and delays in time-lines for release
• modernizing the access system through Internet access points and digital monitoring and releasing systems

3) The CBC's duty to protect its journalistic sources
Under Bill C-461, the Information Commissioner and the staff of the Office of the Information Commissioner could review all CBC documents related to confidential sources, including information about the identity of the source. The Supreme Court of Canada has recognized the presumptive right of the media to protect their confidential sources as a vital component of our constitutionally protected “freedom of the press and other media of communication.” Therefore, if C-461 is passed, CJFE believes that any request to disclose information that could tend to identify a confidential source must be carefully scrutinized by the court. Before any such disclosure is made to the Commissioner a court must decide whether, after balancing the public interests at stake, it is necessary in the circumstances. While we respect the Commissioner's integrity to protect the confidentiality of such information the Commissioner is an officer of parliament whose appointment is at the discretion of political interests and there will be other Commissioners and staff in years to come.

It is critical that this issue be understood from the point of view of a confidential source, often a whistleblower. To that end, CJFE consulted the whistleblower advocacy group, FAIR (Federal Accountability Initiative for Reform). FAIR's mission is “protecting whistleblowers who protect the public interest.” Since 1998, FAIR has taken calls from more than 300 bona fide whistleblowers and it has a deep understanding of both the law regarding whistleblowers and the difficulties and hurdles they have to overcome. After analyzing Bill C-461, FAIR reported it would seriously disadvantage the CBC in securing information from confidential sources about matters that affect the public interest. Here is what FAIR's Executive Director, David Hutton, told CJFE:

"FAIR believes Bill C-461 will seriously disadvantage the CBC in securing information from confidential sources about matters that affect the public interest. Whistleblowers looking for a trusted journalist to make public a serious disclosure of wrongdoing are likely to be terrified -- with good reason -- of the possible consequences of being identified. If they know that a CBC journalist may have to disclose his or her source to a third party, while other journalists do not, this will be a very strong incentive to avoid the CBC. The whistleblower is unlikely to know or care about the measures in place to protect their identity, nor the character or track record of the Information Commissioner and her staff -- they simply will not want to increase in any way the serious risk that they are already taking."

4) Section 19 of the Access Act is not sufficient to protect confidential sources
The Information Commissioner has suggested that section 19 (personal information) of the ATIA could be used by the CBC to protect its confidential sources. Mr. Rathgeber echoes this notion in his June 3rd testimony:

“... as personal information is exempt from disclosure pursuant to the Privacy Act, concerns that names of confidential sources will somehow be disclosed to the public through access requests are entirely unfounded.”


CJFE has profound concerns about this. The Treasury Board guidelines for applying the ATIA state:

"... a section 19 exemption cannot be claimed for information relating to the current or past positions or functions of a government employee (see paragraph (j)), information relating to services being performed or performed by an individual contracted by a government institution (see paragraph (k)), or information about a discretionary benefit of a financial nature conferred on an individual (see paragraph (l))."

So, section 19 would not protect whistleblowers who are employed by, or on contract with, the federal government. That is a gaping hole. Many, if not most of the whistleblowers who have gone public in the past decade, worked for government.

In addition, the website of the Office of the Information Commissioner also admits that section 19 is not altogether clear:

"... since the term 'personal information' covers a wide area of information, time and further jurisprudence will be needed to get a better understanding of the section 19 exemption."

5) The false claim that the powers of examination of the Commissioner make exclusions for the protection of sources unworkable.

Mr. Brent Rathgeber is opposed to the current exclusion (s. 68.1) which gives the CBC an "absolute" right to exclude documents that would reveal the identity of confidential sources. He is also against the proposed amendment the Justice Department plans to introduce, also in the form of an exclusion. Mr. Rathgeber argues that these two measures are futile because under section 36 (2) of the Access Act no document can be withheld from the Information Commissioner. Therefore, Mr. Rathgeber said:

"I am skeptical that an exclusion can be drafted that can coexist with the Information Commissioner's unfettered powers to compel document production."

This assertion rests upon the premise that the Commissioner's ability to review information about sources constitutes a threat to the confidentiality of the source's identity. However, his own bill allows the same process of review of all documents, including those dealing with sources.

While we have problems with the logic of Mr. Rathgeber's argument, we also have to say that the assertion that the Commissioner's power under s. 36 is “unfettered” is not correct. The Federal Court of Appeal finding in November of 2011 states:

"... 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."

The Information Commissioner herself concedes the limits on her powers of examination of records. In the background note to her testimony on May 29th, the Office of the Information Commissioner says:

"The Court stated that, in the case of records containing a journalistic source, the record, or a part thereof that would reveal a source, would not be subject to the Commissioner's power of examination."

In conclusion, CJFE maintains that Bill C-461 is ill-conceived, and in fact constitutes a potential threat to the integrity of CBC journalism and programming, jeopardizing the public broadcaster's right to freedom of expression and crippling its ability to protect its confidential sources.

Respectfully,

Peter Jacobsen
Chair, CJFE Canadian Issues Committee
Bersenas Jacobsen Chouest Thomson Blackburn LLP

Bob Carty
Journalist
Member, CJFE Board

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