The most significant distinction with the exemption we have before us in Bill C-461...and I'll just speak in terms of the specific exemption and the exclusion. That way I think it will be clearer.
The current exemption being proposed is a discretionary exemption. There's a prejudice test, and it's linked to the independence. There is an exercise of discretion that has to be done by the head of the institution.
If there's an access to information request, the institution will have to determine whether the records that have been asked for fall within the category of records...whether they apply to journalistic, creative, or programming activities, those kinds of records. If they are, then they have the discretion to disclose them or not, looking at whether or not it will prejudice their independence. That's essentially the exercise they're going to have to do.
Emily can correct me. She's dealing with these all the time.
If it's an exclusion, what the CBC is currently doing is asking themselves whether the records relate to anything that has to do with programming, creative, or journalistic activities. If they do, then they have to determine whether they are, however, related to general administration.
You can imagine that for a public broadcaster most of its records relate to programming, creative, and journalistic activities. The difficulty with the files in relation to the CBC is that the general administration part is sort of intertwined in the records.
Whether we have an exemption or whether we have an exclusion, that difficulty in terms of deciding what can be disclosed or not will always remain. Bill C-461 will not resolve the difficulty in finding out what the exemption applies to or what the exclusion applies to.