[acc-cca-l] Accessing CBC archival material, ETHI and the limits of the Information Act

Patrick McCurdy pmccurdy at uottawa.ca
Mon Oct 31 08:42:10 MDT 2022


[△EXTERNAL]


Hi All
I'm writing to share my submission to the Standing Committee on Access to Information, Privacy and Ethics (ETHI) about the CBC and Information Act in the hopes it may resonate with anyone who has tried to research the CBC or filed a CBC ATI.

TLDR, the Information Act (esp section 68.1) allows the CBC to sit on production and show information forever and is never bound to release it to the Canadian public. As you can imagine, this is problematic for those seeking to study CBC's history. As the ETHI is currently looking into the obstacles and limits of the Information Act, I have written a brief through the lens of my research into the 1977 docudrama The Tar Sands (articles and a documentary) and highlight the obstacles of the Information Act and CBC's application of it. I have filed ATIs with the CBC since 2017 and met heavy resistance in my requests for simple, and in my mind benign,  things such as internal policy documents from the late 1970s. I firmly believe these documents should find their way into the public record and try to make this case in my brief. For interested parties,  I have pasted my brief as text below but can share the proper submission and the accompanying appendices if you get in touch.

Moreover, please feel free to submit your own brief or even a letter of support which would tell the ETHI that I'm not the only researcher facing this issue. I'm happy to provide more context off-list but the below brief should provide enough context to work on.

Cheers
-Patrick

===
October 31, 2022

RE: Brief Submitted to the Standing Committee on Access to Information, Privacy and Ethics (ETHI) by Professor Patrick McCurdy, Associate Professor, Department of Communication, University of Ottawa


Dear ETHI,
The purpose of this brief is to address the affordances given to the Canadian Broadcasting Corporation (CBC) under Section 68.1 of the Access to Information Act, highlight the challenges and obstacles 68.1 presents for both researchers and Canadians interested in CBC's history, and offer some potential remedies and recommendations for the ETHI to consider. This brief is written based on my experience as an academic who has filed several CBC ATIs since early 2017. While I primarily discuss 68.1, my objective is to improve the overall transparency of documents held and released by CBC. In my experience, CBC often uses 68.1 in tandem with additional exclusions such as 18(b) and (d), which guard the CBC's financial and competitive as further justification for withholding documents. Consequently, providing Canadians with more and better access to CBC documents requires amendments beyond just a change to 68.1 but include other commonly invoked sections, all of which could be subject to a sunset clause.

As you are aware, Section 68.1 of the Access to Information Act excludes information relating to the CBC's journalistic, creative, and programming activities. While CBC's immediate protection under the Act makes sense, there is an issue concerning the historical importance of the CBC and the value its documents have to researchers and the broader Canadian public. I understand that the original intention and spirit of 68.1 was to safeguard the CBC's independence and freedom of expression as a public broadcaster by withholding information that could be used to exert political, economic or private influence. Indeed, it is paramount that CBC remains capable of upholding its independence and freedom of expression.

A significant challenge with 68.1 and other sections of the Act frequently used by CBC is that the exclusion allows for historically and culturally significant material to stay shrouded under 68.1 in perpetuity. However, given CBC's historically significant and ongoing important role in Canadian culture, the exemption under 68.1 and/or related clauses commonly invoked by the CBC should be modified and ultimately be subject to a sunset clause. While there is certainly a case that some extremely sensitive information held by CBC, such as journalistic sources, should never be made public, the general spirit of 68.1 should be changed so that most of the information currently exempt is eventually made public.

The need to change how and what CBC is required to disclose under the Information Act is perhaps best illustrated with some examples. Throughout the rest of this document, I will refer to various CBC ATIs I have conducted and provide the corresponding ATI number. I have purposely limited the brief to referencing select ATI request numbers, documentation, and correspondence. I can provide additional documentation for any of the submissions mentioned in this brief should the ETHI wish.

Since 2016 I have been researching a banned 45-year-old CBC docudrama called The Tar Sands (1977) and in 2018 won an SSHRC Insight Grant to fund my research (IG Number: 435-2018-1019). Thus far, project outputs have involved two academic articles and a short documentary film featuring interviews with many involved in the show's airing and subsequent legal case[1]. Since starting this project, I have filed at least 7 CBC ATIs seeking production information, scripts, legal documents and anything else they could provide about the show (e.g. CBC ATI: A-2016-00022, A-2016-00099, A-2019-00029, A-2019-00087, A-2019-00121, A-2019-00128, A-2020-00013). With each request, CBC has withheld crucial information under 68.1. For example, the CBC refused to disclose the television script of The Tar Sands. In email correspondence dated February 20, 2017, between CBC's Vice-President of Legal Services Sylvie Gadoury and me, Gadoury argued that this now four-decade-old document must be protected under 68.1 to allow the CBC "to remain competitive in a constantly changing broadcasting market". I have included her full reply in this brief (see Appendix 1). As a workaround, I offered to travel to Toronto to view the requested documents in confidentially but this request was denied in subsequent CBC communication. If CBC is indeed relying on guarding 45-year-old TV scripts for its success, as Gadoury suggests, then it is in greater trouble than I thought.

I eventually managed to track down a version of The Tar Sands' script from both the Alberta Provincial Archives and the Library Archives Canada fonds of the film's director Peter Pearson. While I am grateful to have obtained the script from outside the CBC, it is precisely this type of document that should be made public. The airing of The Tar Sands and the subsequent lawsuit filed by Albertan Premier Peter Lougheed was an important moment in CBC history; however, with the current state of the Information Act, CBC is within its rights to continue refusing to disclose documents in perpetuity.

During my research on The Tar Sands, it became clear that the program had a significant, though undocumented, impact on CBC's television drama and docudrama policies. As a scholar interested in public broadcasting and aware of the scandal caused by The Tar Sands, I sought to examine how internal discussion at the CBC and its policy around drama and docudrama evolved from the 1970s to the 1980s. However, in attempting to access information to answer this research question, the CBC again invoked 68.1 along with 18(b) and 20(1)(b) to protect decades-old documents which have historical relevance to scholars interested in Canadian broadcasting. Some examples of material withheld include a March 1978 position paper called "Towards a policy on documentary drama" (CBC ATI A-2020-00014, page A0075105_9-000041 to page A0075105_9-000085, see Appendix 2). While CBC released a folder called "Documentary Dramas, guidelines, policy November 19 1980 to November 30 1991" it censored much of the pertinent information citing 18(b) and 68.1 (CBC ATI A-2020-00013, page A0075127_1-000122 to page A0075127_1-000126, see Appendix 3). Meanwhile, a 1977 memo about how Knowlton Nash viewed documentary drama was redacted except for Mr. Nash's signature (CBC ATI A-2020-00013, page A0075127_8-000129 to page A0075127_8-0001309, See Appendix 4). These are just three examples of many that would provide valuable context to my research project. Beyond the limited scope of my research, these decades-old documents have public value by providing a window into how the CBC has thought about and debated policy and how this has evolved over time. Important lessons may be gleaned from the critical analysis of such discussions, yet with the Information Act's current configuration, access to such internal documents may never be granted.

CBC's persistent refusal to release decades-old documents raises the question of when, if ever, do documents transition from a contemporary issue where the CBC's interest should rightly be protected to a matter of public interest and Canadian history? This question is even more critical given CBC's mandate, as articulated in the 1991 Broadcasting Act, to contribute to a shared national consciousness and identity and actively contribute to the flow and exchange of cultural expression. I would argue that CBC achieves this not just in its program output but in how it makes its programming and the corresponding policy environment. As such, and as an entirely publicly funded institution, CBC's archival material is of interest and value to Canadians. As a media scholar with a research-active interest in Canadian media history, the process and decisions regarding how programs are made, shelved, and modified are as significant as the final program sent to air. These decisions, as captured in the internal documents held by CBC, reflect how those within and outside of the CBC view the corporation and its evolving place in Canadian society. However, the current blanket affordances granted to the CBC under the Information Act actively obstruct anyone outside the publicly funded media organization, including academics, historians and researchers, from effectively studying the CBC.

While this brief has thus far focused on ATIs filed on The Tar Sands, I have filed requests about other CBC programs and issues at CBC, and it is worth briefly sharing these experiences. For example, in September 2020, I filed an ATI asking for any documentation, such as scripts and production notes pertaining to the first four episodes in season 1 of The Beachcombers, including the 1971 unaired pilot episode (A-2020-00068). Perhaps unsurprisingly, CBC withheld much of my request under 68.1. While this ATI could seem silly or superficial, production notes and scripts could hold interesting facts about the production of a classic Canadian TV show. Yet the fifty-one-year-old script from The Beachcombers is currently afforded protection usually reserved for the most sensitive of state secrets

Not only does CBC broadcast important events, but the story of how these events happen is a matter of cultural and historical significance that should eventually find its way into the public record. Focusing on more recent events, I filed an ATI in the fall of 2016 on the August 20, 2016, final concert of The Tragically Hip (A-2016-00056). The show was simulcast live on radio and television to an estimated audience of 11.7 million people, close to one-third of the country, making it a media event of significant Canadian historical interest. While CBC released some documents, much was withheld under 68.1 and other sections of the Information Act. While a case could be made that the event is still relatively recent, the fact remains that documents detailing how this significant event came about, was put together and successfully pulled off will never be required to enter the public record. Instead, it is protected in perpetuity under the Information Act's current configuration.

My last example revolves around how CBC managed to keep operating during the onset of the global COVID-19 pandemic. In mid-March 2020, CBC suspended local television news programming, much to the ire of many Canadians who relied on their local television broadcast in the context of a global health crisis with local consequences. After a significant amount of public pushback, CBC reversed its decision and made further changes to its programming, including dropping the CBC News Network paywall. Following these events closely, I field two ATIs seeking documentation about local television news programming and CBC News Network (ATI A-2020-00020, A-2020-00023). While CBC released some information, it withheld other material under the Information Act. While I appreciate this is an evolving story and that CBC currently faces amplified political and financial pressures, given its vital role as a public broadcaster during the pandemic, these important decisions should eventually become part of the public record, especially when historians seek to look back and better understand the pandemic and strange times we are living through.

I would ask the ETHI to develop a remedy that, while protecting the short-term interests of the CBC within the original spirit of the Act, also ensures eventual public access to documents.   While the ETHI must determine the exact appropriate amount of time for documents to be released, one reference point could be the time limit placed on Cabinet confidences. Based on my understanding, Cabinet confidences are currently privileged for 20 years, at which point documents are no longer ATI-exempt. Perhaps it is reasonable to place the bar for old CBC docudrama policies or dusty scripts from The Beachcombers on par, or maybe even lower than Cabinet confidences? This question is well worth considering.

In conclusion, my brief has sought to make explicit the challenges and barriers researchers attempting to study the CBC's history face. CBC is an important Canadian public institution of significant cultural and historical value, yet those outside the organization may only access many documents through ATIs. However, the information released through ATIs is often unsatisfactory as the Information Act's affordances and CBC's broad application of it allow for swaths of history to remain veiled in perpetuity. This must change.

If I can be of further assistance or if additional comment or documentation is needed, please do not hesitate to contact me.

Sincerely,


Patrick McCurdy, Ph.D.  Associate Professor,  Department of Communication, DMS 11118
University of Ottawa, 55 Laurier Avenue East, Ottawa, ON, K1N 6N5
Email: pmccurdy at uottawa.ca<mailto:pmccurdy at uottawa.ca> | Tel: (613) 562-5800 ext. 2728 | (c) 613-880-6878
List of Appendices
Appendix 1: Letter dated February 20, 2017 to Patrick McCurdy from Sylvie Gadoury, CBC's Vice-President of Legal Services.

Appendix 2: Extract from CBC ATI 2020-00014, requesting a March 1978 position paper called "Towards a policy on documentary drama", pages A0075105_9-000041to A0075105_9-000085.

Appendix 3: Extract from CBC ATI A-2020-00013, requesting the contents of a folder called "Documentary Dramas, guidelines, policy November 19 1980 to November 30 1991", pages A0075127_1-000122 to A0075127_1-000126.

Appendix 4: Extract from CBC ATI A-2020-00013, memo from Knowlton Nash, pages A0075127_8-000129 to page A0075127_8-0001309.







-------------------------------------------------

Patrick McCurdy, Ph.D.
Associate Professor / Professeur agrégé
Department of Communication / Département de communication
University of Ottawa / Université d'Ottawa
55 Laurier Avenue East, Ottawa, ON
K1N 6N5

Twitter:@pmmcc<https://twitter.com/pmmcc>
Web:http://arts.uottawa.ca/communication/en/people/mccurdy-patrick
Phone: +1(613)562-5800 ext. 2728
Office: Desmarais #11118


________________________________

[1]  While one article is in press, one was recently published: McCurdy, P. (2022). “Excavating CBC’s Docudrama The Tar Sands<https://doi.org/10.17742/IMAGE.PM.13.1.6>”, Imaginations 13(1). Available online:  https://journals.library.ualberta.ca/imaginations/index.php/imaginations/article/view/29628
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