Case Report – Federal Court says Information Commissioner can order production of excluded records

On September 24th, the Federal Court held that the Information Commissioner of Canada can order the CBC to produce records it claims to be excluded as records relating to journalistic, creative or programming activities.

The CBC denied access based on a special exclusion that it was granted when it was brought under the Access to Information Act in 2007. It reads:

68.1 This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

The Court held that the Commissioner can order production of records claimed to be excluded under this provision in the course of investigating an access complaint because reading “this Act does not apply” to preclude such a power would frustrate the purpose of the ATIA. It also noted that there was no evidence of harm to the CBC’s journalistic interests that would flow from handing records over to the Commissioner.

Canadian Broadcasting Corporation v. Information Commissioner of Canada, 2010 FC 954 (CanLII).

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