Certain amendments to the Regulation respecting the distribution of information and the protection of personal information1 (the "Regulation") came into force on April 1, 2015. The purpose of those amendments is to widen the scope of the information which some Québec public bodies are required to distribute on their websites under the Act respecting documents held by public bodies and the protection of personal information2 (the "Act").3
In general, the amendments are intended to "promote government transparency through the proactive distribution of information related to the management of the financial resources of public bodies and enable citizens to follow Government activities and expenditures".4 Among these amendments, however, is one in particular that is likely to impact the management of offtitle searches in due diligence audits and/or the carrying out of environmental assessments.
The amendments resulted in the adoption of new rules including:
- most replies provided by some Québec public bodies to requests for access must now be published on such bodies' website; and
- such replies may then be studied, analyzed and scrutinized by any person.
These rules will have the following possible consequences:
- to indicate to third parties the source of a potential transaction;
- to make public certain information concerning an immovable property or a business;
- to establish new sources of research in advance of a transaction.
It must be remembered that, in commercial transactions, as well as in the performance of environmental assessments, requests are often made for access to the files of government authorities, in order to ascertain whether there are any legal issues relating to certain properties which cannot be identified by means of a search in the land registry. Such searches generally involve the making of requests for access to public bodies, in order to obtain copies of information of various kinds contained in their records concerning the properties about which the information is sought.
Since April 1, 2015, to the extent that they are available under the Act, some Québec public bodies are required to distribute, on a website:
(...) the documents sent under a request for access, together with the anonymized decision of the person in charge of access to documents, except for documents containing:
- personal information, unless the information is considered public information within the meaning of section 55 of the Act;
- information supplied by a third person within the meaning of section 23 or 24 of the Act;
- information whose communication must be refused under section 28, 28.1, 29 or 29.1 of the Act (...)".5
Until quite recently, documents sent in reply to a request for access had to be distributed only if they were of interest for public information purposes.
Thus, for example, the Ministère du Développement durable, de l'Environnement et de la Lutte contre les changements climatiques ("MDDELCC") has made certain changes to its website, so that replies to requests for access handled by the MDDELCC, together with the related accessible documents, are henceforth distributed on its website6, unless the documents concerned by those access requests contain:
- personal information of a non-public nature;
- information supplied by a third parson, for example, information provided by a private business to a Québec public body; or
- information whose communication must be refused under the Act, such as certain information having an impact on the administration of justice and public safety.
The Consequences are Double-Barrelled
On the one hand, an applicant for access may find that the replies he or she has received are available publicly. In fact, any request for access made to some Québec public bodies in the course of a due diligence audit and/or the carrying out of environmental assessments may henceforth result in certain documents, such as those produced by a public body, becoming accessible to anybody on the public body's website, even if the documents contain information about a business.
On the other hand, anyone will be entitled to browse through the information made public in this way. For example, the documents made public by the MDDELCC will now be searchable, either by administrative region, by subject and/ or by date. The records so created, pursuant to the amendment of the Regulation in force as of April 1, 2015, will thus add an additional source of information, when the time comes to ascertain whether any issues exist with regard to a given property.
Consequently, going forward, it will be necessary, when deciding what checking to do, in performing due diligence audits and/or environmental assessments, (i) to determine whether or not it is relevant, taking account of the objectives in view, to consult the records of replies to access requests and (ii) to evaluate the benefit of obtaining copies of the records held by some Québec public bodies, having regard to the risk that it may become obvious that certain properties are being targeted by various requests, thus suggesting the possibility of a transaction.
1 CQLR, c. A-2.1, r.2.
2 CQLR, c. A-2.1.
3 Order-in-Council 107-215 (27 February 2015), Gazette officielle du Québec, Part 1, March 11, 2015, Vol. 147, No. 10, p. 291.
4 Draft Regulation to amend the Regulation respecting the distribution of information and the protection of personal information, Gazette officielle du Québec, Part 2, November 26, 2014, Vol. 146, No. 48, p. 2569.
5 Regulation, sect. 4(1) para.8.
6 MDDELCC, Réponses aux demandes d'accès aux documents, http://www.demandesinfos.mddelcc.gouv.qc.ca (last visited: May 22, 2015).