Federal Appeal

Administrative Law

Disclosing records to commissioner does not amount to revealing them

Canadian Broadcasting Corp. (“CBC”) received almost 900 access to information requests pursuant to Access to Information Act (Can.). Almost 200 of those requests refused and almost 100 of refused requests subject of complaints to Information Commissioner of Canada. Proceedings related to 16 refused requests that were subject of complaints. Section 68.1 of Act creates exclusions for three types of information but subject to exception that Act does not apply to information under control of CBC that relates to its journalistic, creative or programming activities, other than information relating to its general administration. CBC refused majority of access requests on ground that information requested related to journalistic, creative or programming activities without explanation as to exact nature of exclusion invoked. Commissioner ordered CBC to provide records related to 16 impugned requests pursuant to s. 36 of Act. Section 36 grants commissioner power to compel persons to produce documents requisite to investigation of complaint and to “examine any record to which [the] Act applies that is under the control of a government institution”. CBC argued records excluded from Act not records to which Act applies within meaning of s. 36. Federal Court Judge found that commissioner had to examine information excluded under s. 68.1 to determine whether exception applied. CBC appealed, seeking declaration that invocation of exclusion in s. 68.1 has effect of depriving commissioner of power to examine documents subject to refusal. Appeal dismissed. Documents referred to in s. 36(1)(a) must be subject to Act or, at least, capable of being viewed as such at time of examination. Otherwise, words “to which this Act applies” in s. 36(2) superfluous. Excluded record does not meet this requirement. Section 68.1 is exception to exclusion. Impossible for commissioner to determine whether information relates to general administration of CBC, and thus falls under s. 68.1 exception, without authority to review records, including those relating to journalisitc, creative or programming activities. Exclusions pertain not to records but rather to information. Nature of exception such that it may overlap with excluded information with result that review by commissioner required to give effect to exception. Parliament intended that information related to journalistic, creative or programming activities be excluded from application of Act but wanted information related to CBC’s general administration to not be excluded. Commissioner’s role to initially determine whether exception applies and to exercise recommendation power. Commissioner’s investigations confidential; disclosing records to commissioner does not amount to revealing them. Difficult to see prejudice if commissioner to take cognizance of records.

Canadian Broadcasting Corp. v. Canada (Information Commissioner)

(Nov. 23, 2011, F.C.A., Noel, Trudel and Mainville JJ.A., File No. A-391-10) Decision at 194 A.C.W.S. (3d) 346 was affirmed. 210 A.C.W.S. (3d) 384 (37 pp.).

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