Submission received by email on August 28, 2020
Subject: Revising the Information Act to access historical CBC documents
Dear Hon. Duclos,
I am writing in your capacity as President of the Treasury Board and in anticipation that the Treasury Board will soon be conducting a review of the Access to Information Act. I am specifically writing with regard to the CBC and Section 68.1 of the Access to Information Act. As a Canadian media and communications academic and as someone who is conducting a research project into an event in the CBC’s past, I have run up against the CBC’s use of 68.1 a number of times and strongly believe this section of the Information Act together with the CBC’s protection under the Act must be amended. 
As you know, Section 68.1 of the Access to Information Act excludes information relating to the journalistic, creative, and programming activities of the Canadian Broadcasting Corporation (CBC) that is held by the CBC. I appreciate that the spirit of 68.1 is to safeguard the independence and freedom of expression of the CBC as a public broadcaster by withholding information which could be used to exert political, economic or private influence, however, a significant challenge with 68.1 (and, indeed other sections of the Act frequently used by CBC) is that it lacks a sunset clause; this must change. Bill C-58 (2012), which reviewed ATIP policies, argues that disclosures needed to be maximized – clearly, 68.1 can be reviewed under the now reinforced mandate of ATIA to disclose info as much as possible. 
While CBC’s immediate protection under the Act makes sense, there is a wider issue which concerns the historical importance of the CBC and the value its documents have to researchers and the wider Canadian public. As there is no sunset clause, some CBC material can stay blanketed under 68.1 in perpetuity. I believe there should be a time limit placed on the CBC for how long documents may be exempt under 68.1 and related clauses commonly invoked by the CBC. In tandem with this, the CBC should be mandated to make publicly available its internal archive after a predetermined amount of time such as 25 years. 
My call for change is based on a SSHRC-funded research project I have been conducting since 2016 involving the CBC. Since starting my research, I have filed at least 6 ATIPs with CBC seeking information around a 43-year-old docudrama called “The Tar Sands” (1977). With each request, the CBC withholds crucial information under 68.1. For example, the CBC is refusing to disclose the television script of “The Tar Sands.” While I have managed to obtain the script both from the Alberta Provincial Archives as well as the fonds of the film’s director (Peter Pearson), the CBC has invoked 68.1. In email correspondence from February 20, 2017, between myself and Sylvie Gadoury, Vice-President Legal Services, General Counsel and Corporate Secretary, Gadoury argued that this now 43-year-old document must be protected under 68.1 so as to allow the CBC “to remain competitive in a constantly changing broadcasting market” (I am happy to share the entire correspondence). 
Another related example is my quest to obtain CBC policies about drama in order to understand how they evolved over time (especially from 1970 to 1979). CBC is again invoking 68.1 in order to withhold 40-year-old policies which have public value especially as a scholar attempting to understand how CBC policies have changed over time. 
These are just two examples of decades-old historically significant material that the CBC has in its possession, yet scholars, researchers and the Canadian public cannot access them. In sum, my experience with the CBC and its use of 68.1 raises important questions around when we slide from a contemporary issue where the CBC’s interest should rightly be protected to an issue of public interest and Canadian history. This question is all the more important given CBC’s mandate as articulated in the 1991 Broadcasting Act to contribute to a shared national consciousness and identity as well as actively contribute to the flow and exchange of cultural expression. This is achieved not just in the program itself but in how shows are made. As such, and as an entirely publicly funded institution, CBC’s archival material is of interest and value to Canadians. Indeed, I would argue that perhaps as important as what airs on the CBC is the process and decisions regarding how programs are made or not made; what these decisions say about CBC, its role in Canada, how it sees itself and how Canadians view our public broadcaster. 
In conclusion, it is incredibly difficult for researchers to delve into CBC’s past as some documents may only be obtained through ATIPs at the CBC’s discretion. As it stands 68.1 provides too broad a remit to keep the public broadcaster’s important history veiled at its discretion. I believe the history of public broadcasting in Canada is too important to be kept from Canadians and, as such, not only do changes need to be made in the Information Act but the CBC must also be mandated to have a public archive of institutional material. I am certain this is a view which would be shared by other researchers and Canadians. 
I am happy to discuss and expand upon my experience with 68.1, or my case of “The Tar Sands” CBC libel suit research. 
I look forward to hearing from you. 
Sincerely, 
Professor Patrick McCurdy 
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Patrick McCurdy, Ph.D.
Associate Professor / Professeur agrégé
Department of Communication / Département de communication
University of Ottawa / Université d'Ottawa