Since the coming into force of the Act respecting Access to documents held by public bodies and the Protection of personal information (hereinafter the “Act”), a myriad of decisions on the matter of accessibility to the expense accounts of members, the board of directors or the management personnel of a public body have been handed down in light of subsection 57(1) of the Act.
Two recent decisions have circumscribed access to expense accounts, and thus conveyed clear guidelines to those in charge of access to information held by public bodies:
- In the first decision, Société des alcools du Québec v. Paquet, 2008 QCCQ 3404, rendered on April 30, 2008, the Court of Québec established the principle of access to expense accounts on the basis of the concept of “duties” in section 57(1) of the Act;
- In the decision V.D. v. Loto-Québec, 2008 QCCAI 95, rendered on May 2, 2008, the Commission d’accès à l’information, for its part, specified which types of information could be removed by a public body.
At first glance, it may seem surprising that as an exception to the protection of personal information, expense account records may be made public by categorizing them under “duties.” In fact, this connection is far from obvious, especially as it stands in contrast to the clarity of the amendment made by the federal government to the Access to Information Act in 2006, where the new section 3.1 expressly provides as follows:
3.1 For greater certainty, for the purposes of this Act, information that relates to the general administration of a government institution includes information that relates to expenses paid by the institution for travel, including lodging, and hospitality.
Despite this, following the Court of Québec’s decision, said connection now indeed seems to be accepted as the law currently existing in Québec.
Access to expense accounts is based on the finding suggested by the Supreme Court in Dagg v. Canada (Minister of Finance)1, where “information relating […] to the manner in which [officers] choose to perform the tasks assigned to them is ‘personal information’,”2 thus establishing a kind of paramountcy of protection of personal information and privacy over access to information.
Paquet v. Société des alcools du Québec
In Société des alcools du Québec v. Paquet, Justice Henri Richard heard an appeal of commissioner Guylaine Henri’s decision rendered on March 30, 2007 regarding the following request for access:
[TRANSLATION] 1 – For the entire year of 2005, the breakdown of expense reimbursements for the SAQ’s current executive officers. For the executive officers who assumed their duties during 2005, please provide records dating from since they commenced the position. To avoid any misunderstanding, we define “executive officers” as all of the senior officers currently in office at the SAQ. For information purposes only, as at March 26 last, the SAQ had 135 such executive officers, according to your annual report.
(Request dated January 16, 2006)
On February 16, 2006, in response to this part of Mr. Paquet’s request for access, the SAQ initially transmitted a “[TRANSLATION] table showing expenses by category”. In this table, the expenses were grouped by month into various expense categories for each of the SAQ’s senior officers, in keeping with a formula widely used by public bodies to respond to expense account requests. In its response, the SAQ essentially justified its refusal to give access to the expense claim forms and supporting documents by citing the protection of personal information of the persons concerned.
Mr. Paquet applied for review of the SAQ’s decision in order to have access to the expense claim forms. In terms of the legal analysis, Commissioner Henri found that while the expense accounts are not included in the concept of salary in section 57 of the Act, they are included in the term “duties”, and as a result, the records related to expense accounts are accessible under the Act.
As regards the analysis of the records as such, the commissioner decided that the supporting documents were not accessible to the plaintiff since personal information formed the substance thereof. As for the expense forms, the commissioner found that those records were accessible, but that the following information would have to be blanked out:
- The employee number of the executive officer;
- The personal address, telephone and social insurance numbers, name of the banking institution and bank account number of the executive officer;
- If applicable, the name of the physical persons in whose company the expense was incurred;
- The name and address of the establishments where the expenses were incurred.
Following a review of the applicable jurisprudence, the Court of Québec confirmed the legal analysis of the Commission de l’accès à l’information in that the concept of “salary” did not provide for access to expense accounts, but that the concept of “duties” did indeed provide for such access.
In the analysis of the records, the judge also confirmed the distinction to be made between the supporting documents that are not accessible and the expense claim forms that are accessible once they are stripped of the information identified by the commissioner.
With this decision, Justice Richard dispelled any possible doubt as to the interpretation of the term “duties” in section 57 of the Act. In fact, Justice Richard found that the decisions to the contrary did not express the majority view and the existing law on the matter. Consequently, those in charge of access to information will now have to provide access to expense claim forms completed by executives.
Lastly, as regards the Court of Québec’s ability to intervene, Justice Richard came to the following finding after carrying out a 27-page analysis on the standard of review as developed by the Supreme Court’s decision in Dunsmuir v. New-Brunswick3, thus confirming the case law on the matter:
[TRANSLATION]  Consequently, and applying the whole to the right of appeal set out in the Act respecting access, the Court finds that the pragmatic and functional analysis, now known under the appellation “standard of review analysis”, has no application in matters of appeal arising from sections 147 and following of the Act respecting access. When the Court of Québec sits in appeal on such matters, it is subject to the review standards applicable in appeal as defined and circumscribed by Housen. The possibility of appealing as set forth in the Act respecting access applies “to a question of law or jurisdiction”. Thus, in any circumstances, a Justice of the Court of Québec seized of an appeal of a decision of the CAI on a question of law or jurisdiction has complete discretion to substitute its opinion and is also invested of a particular role defined by the Supreme Court in Housen:
[ORIGINAL ENGLISH] Reviewing courts in cases where the law requires settlement, make law for future cases as well as the case under review.
[ORIGINAL ENGLISH] Thus, while the primary role of trial courts is to resolve individual disputes based on the facts before them and settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. In order to fulfill the above functions, appellate courts require a broad scope of review with respect to matters of law. [par. 9 in fine]
V. D. v. Loto-Québec
In V.D. v. Loto-Québec, commissionner Henri rendered a decision without having read the decision in Société des alcools du Québec v. Paquet, which had been handed down three days earlier on the same principles. The application for review concerned the following request for access:
[TRANSLATION]  On September 29, 2005, the plaintiff asked the body for “access to the expense account and documents justifying the expenses” of the body’s president and chief executive officer, Mr. Alain Cousineau, since his appointment on September 24, 2003.
As in the previous case, Loto-Québec had transmitted one table per financial year of Mr. Cousineau’s expenses according to various categories of charges. Access to the expense claim forms was denied on the basis of protection of personal information. In this decision, the Commission specified exactly which information fields are accessible, namely:
a) the amount,
b) the nature, and
c) the date
of an expense incurred in the exercise of duties.
By interpretation, all other information that may be contained in an expense form would not be accessible to the person requesting access. In fact, the Commission gives examples of information fields in this specific case that must be removed:
a) names of hotels where Mr. Cousineau stayed;
b) names of events in which he participated, if applicable;
c) Mr. Cousineau’s employee number; and
d) his phone number.
Some may be surprised that the names of the events in which Mr. Cousineau participated would be blanked out. However, it does indeed appear that this is the Commission’s finding, as it used a strict interpretation of what information pertaining to expense accounts could be made accessible in order to establish the necessary balance between access to information and the protection of personal information.