Konrad von Finckenstein, chairman of the Canadian Radio-television and Telecommunications Commission, told a Commons committee on Tuesday that the section of the Access to Information Act which applies to the CBC is confusing and like no other he has seen before.
He suggested that if MPs aren't happy with the two sides spending money and resources in the courts, they should rewrite the law.
"The easiest way to fix it is to establish by legislation either that yes, (the information commissioner) can look at those documents, or she can't," von Finckenstein, a former Federal Court judge, told the access to information committee.
"It's a legitimate, judicial dispute here. I am not taking any position here, I can just see that how parties can differ on interpretation and that's why we have courts to resolve it."
When the Conservative government brought the CBC under the access act in 2007, it included a clause exempting specified information about the broadcaster's journalistic, creative and programming activities — except if the material touched on general administration. It's that exception that's causing all the trouble.
The CBC will argue before the Federal Court of Appeals this week that the exception means the act simply doesn't apply to certain records and the information commissioner has no jurisdiction to review them. The commissioner says she has the right to see the information and decide whether the CBC is applying the law correctly.
Conservative MP Dean Del Mastro, parliamentary secretary to the prime minister and a member of the committee, told reporters that changes to the legislation might be in the cards.
"I think the chair of the CRTC did make a good point today when we he said that we might want to take a look at clarifying what (that section of the act) means," said Del Mastro. "I don't think it's in the interest of Canadian taxpayers to have a long and protracted court battle between the information commissioner and the CBC."
The Canadian Taxpayers Federation also testified Tuesday, saying it faced its own frustrations in getting documents from the public broadcaster. Federal director Gregory Thomas said the CBC didn't release records in any of the six requests the group submitted, even though in one of the cases Information Commissioner Suzanne Legault directed the CBC to comply.
"Our experience is that CBC is among the worst," Thomas said. "They seem to have a blanket disregard for the legislation and they ignore the directions of the information commissioner, a non-partisan officer who has no axe to grind."
But Thomas also noted that the federation had asked the same committee to review the Access to Information Act and examine whether it has any teeth to deal with violations. Legault ruled earlier this year that a former Tory staffer had interfered in an access request, but the RCMP did not lay any charges after the matter was referred to the force.
"We were disturbed that no one has been prosecuted under the access to information laws," said Thomas.
"We believe that when there are egregious examples of government employees interfering unlawfully with freedom of information, then they should be prosecuted and they should be dismissed from their positions and they should be jailed."
The future of the CBC has become a subject of growing debate in political circles. The Conservatives, who brought the court case issue to the committee, also question whether the broadcaster provides value for taxpayers' money. The party recently polled its members on the same issue.
The National Citizens Coalition has mounted a petition to end public funding for the broadcaster.
On the other side, the Liberal Party started its own petition to defend the CBC and the NDP accused the Tories in the committee of using the access issue to lay the groundwork for budget cuts.
The CBC avoided the last round of federal budget trimming, but like all federal departments and agencies, it will now have to cut spending by somewhere between five and 10 per cent.