Excavation National inc. c. Autorité des marchés publics, 2024 QCCS 2159
Facts
The plaintiff, Excavation National, is a construction company operating in Québec. The defendant, the Autorité des marchés publics (AMP), is a public body overseeing public procurement and the application of regulations governing public contracts in Québec.
On November 16, 2023, the AMP issued a decision refusing to authorize a contract between Excavation National with a public body, and registering it as ineligible for public contracts in Québec.
The plaintiff sought judicial review of the AMP's decision, and broad disclosure of AMP's file. It argued that the full file was necessary for the Court to decide on the legality of AMP's decision. The plaintiff concurrently filed an access to information request with AMP. The AMP refused to transmit the requested documents and deferred the decision regarding the access request.
Decision
The Court rejected the plaintiff's requests, concluding that the disclosure of the AMP's complete file constituted a fishing expedition. In particular, an assessment of the legality of the decision did not require the Court to have the AMP's complete file, particularly in light of the detailed reasons provided to Excavation National.
Key Takeaway
In the context of the judicial review of an administrative decision made by a public body, fishing expeditions in the form of an access to information request to obtain the complete file of the decision-maker will not be granted. The Court will only order the disclosure of additional documents or evidence when it is necessary to assess the reasonableness of the administrative decision.
Gravel c. Agence du revenu du Québec, 2024 QCCQ 1589
Facts
The appellant, Gravel, was investigated by the provincial tax authority, Agence du revenu du Québec (ARQ). The appellant filed an access to information request with the ARQ, seeking various documents and information, including a list of ARQ employees who had access to the appellant's tax file. The ARQ refused to deliver said documents. The Commission d'accès à l'information (Commission) partially granted the appellant's application for review of the ARQ's decision. The ARQ destroyed some data related to Gravel's request in the period between the ARQ's refusal to deliver the documents and the Commission's decision. The destruction of the data made it impossible to generate the requested list of employees.
The Commission concluded that the destruction of the data did not constitute a breach of section 52.1 of the Act respecting Access to documents held by public bodies and the Protection of personal information (Access Act) since what was destroyed was not a document, but data that made it possible to generate the requested document. Gravel appealed the Commission's decision to the Court of Québec.
Decision
The Court allowed the appeal and quashed the Commission's decision.
The Court concluded that the Commission erred in law and failed to follow established case law when it concluded that the computer data that corresponded to the access request held by the ARQ was not a document.
The Court interpreted section 1 of the Access Act and determined that just because a query must be entered into ARQ's system to generate a document does not mean that the document does not exist. The only exception to this rule is when calculations or comparisons are necessary such that a new document is generated.
Therefore, the court determined that the ARQ had possession of the requested document within the meaning of section 1 of the Access Act at the time the request for access was made by Gravel. The ARQ had an obligation to keep the document pending any recourse in accordance with sections 52.1 and 102.1 of the Access Act. By destroying the data, the ARQ failed to comply with its document retention obligations under sections 52.1 and 102.1 of the Access Act.
Key Takeaway
Computer data might constitute a document in the context of responding to an access to information request. The only exception is when calculations or comparisons are to be made such that a new document is generated. Computer data must be maintained where it is the subject of an access to information request and subsequent appeal.
Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4
Facts
In this case, the Supreme Court of Canada considered the scope of cabinet confidentiality in the context of an access to information request under Ontario's Freedom of Information and Protection of Privacy Act (OFIPPA).
A journalist had made an access to information request for 23 "mandate letters" from the Premier of Ontario to his ministers shortly after forming government in 2018. The Cabinet Office declined the request claiming the mandate letters were documents that would reveal the substance of cabinet deliberations and were thus exempt from disclosure under subsection 12(1) of OFIPPA. The Ontario Information and Privacy Commissioner (OIPC) found the letters were not exempt and ordered their disclosure. The Ontario Divisional Court overturned the decision on judicial review, holding that the letters were exempt. The Ontario Court of Appeal upheld the Divisional Court's decision.
Decision
The Supreme Court unanimously held that the mandate letters were exempt from disclosure. Justice Karakatsanis wrote the majority opinion, while Justice Côté wrote a concurring opinion that agreed in result with the majority but disagreed with their approach to the standard of review of the OIPC's decision.
The majority held that the OIPC had failed to appropriately grapple with the broader legal and factual context of subsection 12(1) OFIPPA. In particular, the OIPC failed to appreciate the constitutional conventions and traditions governing Cabinet confidentiality and Cabinet's deliberative process. In a constitutional democracy, the confidentiality of Cabinet deliberations is a precondition to responsible government. It is necessary so ministers do not censor themselves in policy debates and can then later stand together in public, and be held responsible as a whole, once a policy decision has been made and announced.
The failure to account for this context led the OIPC to take an unreasonable narrow interpretation of subsection 12(1) such that it did not protect "outcomes" of cabinet deliberations and caused him to mischaracterize the mandate letters themselves as the end product of cabinet deliberations. The majority held that cabinet confidentiality includes the prerogative to determine when and how to announce Cabinet decisions. The mandate letters included unannounced policy priorities, which being not yet public, could be subject to further debate and thus change through cabinet deliberations. The mandate letters were thus subject to Cabinet confidentiality and exempt from disclosure under subsection 12(1) of OFIPPA.
The majority reviewed the OIPC's decision on a reasonableness standard, as that was the standard argued by the parties. Justice Côté wrote that the decision must be reviewed on a correctness standard because Cabinet privilege is a question of central importance to the legal system as a whole.
Key Takeaway
Disclosure exemptions under access to information legislation must be interpreted in their broader legal and factual context, including relevant constitutional norms and conventions.
Cabinet privilege is a foundational constitutional principle, and access to information exemptions intended to protect Cabinet privilege should be interpreted broadly.
Cabinet privilege includes the government's right to choose when and how to announce Cabinet decisions. Unannounced Cabinet decisions may thus be exempt from disclosure under access to information legislation.
Miville de Chêne c. Québec (City of), 2024 QCCAI 127
Facts
The petitioner submitted an access request to the City of Québec, the respondent, seeking access to documents related to a 2011 management agreement and a commercial lease (the Agreements) relating to the operation of the Centre Vidéotron. Numerous third parties were involved in the Agreements.
In particular, the petitioner requested access to financial statements from 2015 onward. The City of Québec refused to disclose these documents, claiming it did not have legal possession of them, as the documents belonged to the third parties and were not physically or legally held by the City.
Decision
The first judge made two key findings. First, the Commissioner did not have the authority to compel the disclosure of solicitor-client records, such that the Minister was not required to comThe Commission concluded that the financial statements were not in the legal possession of the City. Although City of Québec employees had access to these statements during biannual visits, the records were produced by third parties for their own use, not for the City's purposes. In reaching its decision, the Commission considered that the statements were provided to the City for verification purposes only and that it did not have control over the documents or the ability to request them at any time. Additionally, the Commission confirmed that City of Québec was not attempting to evade responsibility by not physically holding the documents.ply with the Commissioner's recommendation for disclosure. Second, even if the Commissioner had the authority, the Minister had met the burden of proving that the applicant had no right to access the solicitor-client privileged records.
Key Takeaway
Organizations do not have legal possession of documents simply because they have access to them for verification purposes, if they do not have control over the documents.
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