This article was co-authored by Philippe Dalmau.
Law 25 has generated much talk since it was adopted in Sep. 2021, and has continued to do so until it came into force in Sep. 2024. While the discussion so far has mostly focused on protection of personal information, access to documents held by public bodies hasn't garnered as much attention. This is no surprise considering the law is entitledAn Act to modernize legislative provisions as regards the protection of personal information.
Before closing the chapter on Law 25, we think it's important to highlight some of the new provisions on access to documents that may have gone unnoticed in the new version of the Act respecting Access to documents held by public bodies and the Protection of personal information (the "ATI Act") as amended by Law 25.
Wider scope of actions for improper requests
Under sections 137.1 and 137.2 of the ATI Act, public bodies may obtain authorization from the privacy regulator in Québec, the Commission d'accès à l'information (the "CAI"), to disregard requests that are obviously improper. These provisions originally introduced in 2006 as part of the ATI Act's reform, aim to limit the possibility of making access requests that are obviously improper because of their number, repetitious or systematic nature, or that would raise serious practical difficulties upon processing. Law 25 has thus broadened the CAI's authority over such requests.
On its own initiative, the CAI can now limit the scope of access requests to allow public bodies to process them more easily, or can extend their response time limit. It can therefore impose a compromise in order to render access requests more acceptable.
Law 25 also sets out a time limit within which public bodies must institute proceedings to have an access request declared improper. Under the revised ATI Act, the public body must apply to the CAI within 20 days of the date it received the requester's most recent access request. The CAI has yet to define the scope of the phrase "most recent request", but it would appear that the 20-day limitation period starts again as soon as the requester sends a new request.
Furthermore, Law 25 has amended section 137.2 of the ATI Act to give the CAI certain powers to restrict individuals' ability to make requests that are frivolous, without purpose or made in bad faith. The CAI may prohibit a person from making a request except with the authorization of and subject to the conditions determined by the chair of the CAI. It may, in the same manner, prohibit a person from presenting a pleading in an ongoing proceeding.
Penal sanctions for denying or impeding access
Public bodies that infringe Law 25 now face steeper penal sanctions under section 158 of the ATI Act, with penalties of $1,000 to $10,000 for natural persons, and $3,000 to $30,000 in all other cases (these fines are doubled for repeat offences). Furthermore, the offences that trigger the application of these penalties are now more detailed, with two offences being specified in the first and second paragraphs of the new section 158 with regard to access to document.
From the outset, a public body commits an offence if it denies or impedes access to a document that is accessible by law. However, the word "knowingly" is no longer included in the description of this offence, as it was in the previous version of the act. As a result, it would appear that a conviction could be obtained without it having to be shown that the offender acted with guilty or malicious intent. The ATI Act also sets out examples of what constitutes denying or impeding access to a document, i.e., destroying, modifying or concealing a document or unduly delaying its release. Thus, a public body which—without valid justification—fails to meet its deadlines for processing an access request could incur penal liability and be forced to pay a fine.
Reinforced duty to assist and adaptation to the technological context
When the ATI Act was reformed in 2006, the legislator introduced an obligation for a public body's access to information officer to assist requesters, not only when they require assistance, but also when the access request is not sufficiently precise to help identify the documents they wish to receive through the access request. Law 25 has reinforced this duty to assist.
Through Law 25, this duty to cooperate has been extended to cases where the public body refuses to release a document. The access to information officer now has a duty to assist a requester who asks for help to understand the body's decision to deny or impede the release of a document.
Finally, the ATI Act's reform has made it possible to adapt the process for accessing documents held by public bodies to the current technological context. It now recognizes that a written access request may be made in a technological format.
Moreover, under the previous version of the ATI Act, the access to information officer could only send opinions and communications to requesters and third parties by mail. This has been amended and all written document formats are now accepted, allowing public bodies to send their communications by any technological means in accordance with the provisions of the Act to establish a legal framework for information technology.
Conclusion
In short, Law 25 has modified the legal framework governing data protection and introduced a number of changes to the provisions governing access to documents held by public bodies. These changes leave the door open to further modernization of the regime for access to documents held by public bodies, which the CAI describes as a "necessary reform" in its 2023-2024 annual activity and management report (in French).
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