Conservative MPs are grilling the CBC over its legal battle with the information commissioner, but it’s hardly a unique case.
Since the Tories came to power in 2006, taxpayers have repeatedly paid for federal agencies — including the Prime Minister’s Office — to fight the access czar in the courts.
A House of Commons committee last week began looking at the case pitting the public broadcaster against the commissioner at the Federal Court of Appeal.
The Tories who pushed for the hearings say they’re concerned that taxpayers are footing the bill for both sides of the fight over who should be able to see the corporation’s records.
“We’ve got a taxpayer-funded organization using taxpayers’ funds to put up a defence, versus a taxpayer-funded office of the (information commissioner), fighting each other in a court paid for by the taxpayers of Canada,” Conservative MP Blaine Calkins told the access to information, privacy and ethics committee before the Thanksgiving break.
“This is not in the best interest of taxpayers unless we get to an end game where we get the transparency we’re looking for.”
The information commissioner goes to court only against federal institutions, since only they fall within her jurisdiction.
The fights can be lengthy. The Prime Minister’s Office went all the way to the Supreme Court of Canada to protect the agendas and minutes of the prime minister and ministers from examination by the commissioner.
The government won the case in May, and commissioner Suzanne Legault expressed disappointment with the result.
Other cases settled recently include:
— The attorney general went to the Federal Court of Appeal arguing the information commissioner didn’t have the right to issue gag orders on witnesses during her investigations. The attorney general lost.
— Industry Canada fought to withhold old census data from a group of First Nations bands who wanted the information to help determine their status. The department lost.
— Environment Canada lost a decade-old battle against the commissioner in 2007 over the release of the “analysis” section of memorandums to cabinet. The initial request was for information about a controversial fuel additive.
Emily McCarthy, general counsel for the information commissioner, said her office will almost always go to court on behalf of a complainant if a government department ignores a recommendation to release records.
“It’s really part of our mandate to represent the complainants before the court, where we found the complaint was well-founded, because it takes some of the burden away from the individual,” said McCarthy.
The commissioner also requests intervener status in cases regarding access to information.
The CBC will be in court Oct. 18 to argue that the information commissioner should not be allowed to review records the broadcaster refuses to release under the Access to Information Act. The CBC has a special exemption for files related to its journalistic, creative and programming activities, as well as its commercial data, and says only a judge can decide whether it has made the right call in withholding the information.
“The officers of Parliament don’t have perhaps the same agenda or the same interest in protecting journalistic sources and we do. That is key, and that’s why we’re going before the appeals court,” CBC President Hubert Lacroix told The Canadian Press last week.
Howard Bernstein, a TV producer who has worked for the CBC in the past, told the Commons committee earlier this month that the network should throw its books wide open — and so should the federal government.
“If (the CBC doesn’t) like the way they are read or interpreted by others, it’s their duty to explain to the public that pays them, not to hide from them,” Bernstein told MPs.
“However … it seems amazing to me that members of Parliament, indeed any politician from any level of government, would undertake to bring the CBC to task for stonewalling the public. Are there any institutions that attempt to bury their mistakes more than governments do?”