Modernizing the Access Act—more transparent public bodies

On March 17, the Minister responsible for Access to Information and the Reform of Democratic Institutions submitted a policy paper announcing the Government's intention to make major changes to the Act respecting access to documents held by public bodies and the protection of personal information ("Access Act") in order to bring about a "cultural shift" towards greater transparency in public bodies.

The almost 200-page document, entitled "Pour un gouvernement plus transparent, dans le respect du droit à la vie privée et la protection des renseignements personnels"[1] was developed based on a comparison of the various solutions adopted in Canada and worldwide and lays the ground for the upcoming public consultation at the National Assembly, which is the first step towards a future bill.

Of the 31 measures proposed, here are some that could change the way public bodies process requests for access.

Limited restrictions

  • The document recommends a new approach for the Access Act: the right to access documents kept by a public body in the exercise of its duties would be the norm, unless an exception is provided for by law.
  • The Government proposes reviewing the restrictions to ensure they are still relevant more than thirty years after the law was enacted.
  • The principle that the restrictions placed on the right of access must be construed strictly would henceforth be explicitly included in the law.
  • The phrase "may refuse to release" in some sections would be replaced with the phrase "[TRANSLATION] "must release, save and except…"
  • Public bodies would henceforth be required to immediately denounce any restrictions supporting their refusal. They could not rely on new reasons in the event of a contestation, other than in exceptional circumstances.

The Government recognizes that the economic interests of government corporations must be protected so as not to harm their competitiveness. Commercial or financial public bodies must benefit from the same rules as private-sector businesses in order to carry out their mission. It should be pointed out though that their special status does not seem to be completely reflected in the proposed amendments to the Access Act.

Additional requirements for providing reasons

  • The Government wants to require public bodies to provide more reasons for their decisions.
  • The restrictions relied upon by public bodies should be demonstrated and directly related to actual (rather than apprehended) harm.

We understand that the Government wants public bodies to render intelligible decisions with respect to their refusal to release information and specify the reasons in support of their claims.

The Access Act already provides that public bodies must give reasons for their refusal and state the legal provisions on which they rely.

The scope of this requirement is thus difficult to assess for the time being, but we hope that it will not go as far as imposing the equivalent of a detailed affidavit. It would be somewhat incongruous to require public bodies to provide more reasons than in quasi-judicial matters, where the Supreme Court has acknowledged that a decision does not need to set out all of the arguments and details, provided the basis for the decision can be understood and is acceptable.

The decisions of public bodies are administrative decisions that should be kept short, provided they minimally explain their reasons, especially since the time limits to respond remain unchanged. Furthermore, the requirement to provide reasons for a decision imposed on the public administration in accordance with section 8 of the Act respecting administrative justice entails that the decision must comprise the details necessary to understand it. We are of the view that the same should apply in this case and that the requirement in question should not go beyond this principle.

This leaves us wondering about the proper consequences if the reasons provided are deemed insufficient:

  • Will the restrictions relied upon simply be rejected because they are insufficient (in which case the tribunal should ensure that the personal information is protected)?
  • Will the decision be reversed and the case returned to the public body in order for it to re-examine the exemptions that apply in this type of situation and explain its decision accordingly?
  • Lastly, can a public body that discovers factors it could not have known at the time it made its decision rely upon them when the contestation is heard?

The increased requirement to provide proof of harm must not have the effect of denying that there is always a chance of a risk, whether or not it does in fact materialize.

Notice to third parties

  • Henceforth, the Access Act would explicitly mention that the burden of proof rests on third parties.
  • Third parties would have to demonstrate why the information should not be disclosed. In this respect, the new directions seem intended to "[TRANSLATION] increase the requirements for third parties to provide reasons for their refusal to release information."
  • The twenty (20) day time limit given to third parties to send their response to the person in charge of access is said to be too short.

We find the decision to shift the burden of proof to third parties rather surprising. One must bear in mind that, generally speaking, third parties are private persons, who, for the most part, are inexperienced in legal reasoning. As a result, the desire to have third parties bear the burden of providing more reasons is certainly a commendable recommendation, but hardly adapted to the situation of third parties, who do not have sufficient resources and expertise in the matter to properly discharge this burden.

Lastly, the directions are silent with respect to the consequences where a third party fails to provide sufficient reasons. Given that the burden rests on the third party, would failure to provide sufficient reasons mean that the person in charge of access is authorized to release the information because the third party, having failed to meet this standard, would thus be presumed to have consented to disclosure? Is this to say that the person in charge of access would become, in practice, the definitive authority on the existence (or not) of presumed consent?

Proceedings heard by the Tribunal administrative du Québec

  • The Commission d’accès à l’information (“CAI”) would become a non-adjudicative body with a dual purpose: access to information and the protection of personal information.
  • The judicial aspect would be entrusted to the Tribunal administratif du Québec, or "TAQ".

This transfer of jurisdiction from the CAI to the TAQ raises practical questions:

On the one hand, we wonder whether the current rules that allow for the documents in dispute to be examined in camera will be transferred as-is to the TAQ. The latter is not accustomed to such an extensive application of the in camera rule, which is essential in this type of dispute.

On the other hand, we wonder what will become of the right of appeal. Will the current rules be maintained (appeal as of right before the Court of Québec with respect to any issue of law or jurisdiction), or will the rules governing appeals from decisions rendered by the TAQ apply from now on?

Mandatory reporting of security incidents

  • Public bodies would henceforth be required to systematically report to the CAI any security incidents involving personal information.
  • Public bodies should also notify the persons concerned if their rights are at risk of being seriously harmed.

The notice that public bodies would be required to give the persons affected by the security incidents seems to be built on federal Bill S-4 to amend the Personal Information Protection and Electronic Documents Act ("PIPEDA"), which contains a similar requirement regarding the risk of harm.

These provisions should also be expected to increase the number of class actions against Quebec public bodies.

In a nutshell, the following are some of the other proposals contained in the policy paper:

  • introducing a full chapter on proactive disclosure;
  • reducing the maximum time limits during which documents may be inaccessible by almost half;
  • increasing the number of public bodies subject to the Access Act;
  • introducing consent validity criteria;
  • introducing new provisions governing online services;
  • specifying the conditions under which personal information may be released outside Quebec;
  • implementing and distributing a register of access requests that have been processed;
  • setting up a centralized site for online access requests;
  • reviewing the penal provisions contained in the Access Act.

This memorandum is only a summary of the measures proposed in the policy paper. It remains to be seen whether the Government's desire to be a model of transparency will bring with it the human, material and organizational resources necessary to implement this huge undertaking.

It must be pointed out that public consultations will be held before a formal bill to amend the Access Act is tabled. The final result may thus differ from the measures discussed in this document.