LAWYER DEMANDS CBC BE MORE OPEN
ALMOST EVERYTHING REDACTED IN ACCESS TO INFORMATION REQUEST ABOUT CBC COMEDY
Lawyer Kevin Wiener just wanted to know how many people were visiting the CBC Comedy website. But when he filed an access to information request, the national broadcaster sent him back a 401- page document that was mostly blank — almost everything was redacted. Huge portions were withheld entirely, and others contained titles or subtitles with no content underneath.
The reason? The CBC says the information would help its competitors.
“From a democratic perspective, knowing this information about how many people consume the CBC is something that should be open to public disclosure,” he said. “And I mean in general, not just when the CBC wants to brag.”
Wiener said he decided to file an access for information request because he had suspicions that CBC Comedy wasn’t attracting many viewers. But he wanted the data to speak for itself.
“Mostly I was just curious because I think CBC Comedy has for a while been a bit of an online punching bag,” he said. “Knowing to what extent the content ( CBC) is producing is even being consumed by Canadians is an important way for us to hold our public broadcaster accountable.”
Wiener asked for records from Aug. 1, 2016, to July 31, 2017, outlining the total number of visits to the CBC Comedy website. He also asked for analytics pertaining to its Twitter account and Facebook page, as well as “any internal reports, memoranda, or presentations about the readership/ visitor numbers for CBC Comedy.”
But what he got back surprised him.
“It really looks like they went into this saying, ‘ Okay let’s disclose as little as possible and use every exemption we can to avoid disclosing everything,’ which I think is disappointing,” he said. “I don’t think that’s the attitude any government agency should have when dealing with an access request.”
Section 68.1 of the Access to Information Act refers specifically to the CBC, stating: “This Act does not apply to any infor- mation 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.”
Wiener says he wasn’t aware of Section 68.1 at the time of filing the request, but would have hoped the corporation would have been more transparent.
In an email statement, Douglas Chow, CBC senior manager of public relations, said the corporation answers information requests according to the exclusions and exemptions outlined in the Act.
“To be clear, we do not release this type of detailed data in Access to Information requests — not for Social, not for Digital, not for Television, not for Radio — regardless of the level of success of any program,” he said. “For CBC to release all the details contained in the analytics and reports would put us at a competitive and commercial disadvantage, in part because CBC Comedy includes advertising.”
In response to the document, Wiener has filed a complaint with the Information Commissioner. The commissioner will do an investigation and based on this will put forward a recommendation. However, the recommendation isn’t binding, meaning Wiener might have to go to federal court to unseal the information regardless of the commissioner’s report.
Wiener says in an ideal situation, the commissioner would strongly disagree with the CBC and take this to court themselves.
If t his were t he case, it wouldn’t be the first time CBC and a commissioner met in court. In 2010, the CBC applied for a judicial review after the commissioner received 16 complaints from people whose access requests were denied by the CBC. As part of her investigation, the commissioner asked the CBC to disclose records to her, and the corporation refused on the basis that the commissioner didn’t have authority to access records protected under section 68.1
The court dismissed the review, concluding the commissioner, “has the authority under section 68.1 to order the CBC to disclose records,” and noted that the wording of this exclusion criteria is “not a model of clarity,” and that the “interpretation proposed by the CBC runs contrary to the purpose of the Act, which calls for it to be interpreted liberally.”
The corporation filed an appeal the following year, which was also dismissed.
In Wiener’s case, it could take months or even years before the mandatory investigation is complete. He will even consider going to court if he has to.
“I think ultimately if there’s a good case to be made that the CBC is misinterpreting ( the Act), then I think it may be worth going to court over,” he said. “It’s hard to say right now.”