Consultations of the Task Force with other Jurisdictions on their Access to Information Regimes

Québec

Access to Information Regime

Quebec’s 1982 Act oversees access to the documents of public bodies and the protection of personal information, entrusting control of its application to a single organization, the Commission d’accès à l’information. This is the oldest provincial statute of its type in Canada and it has greatly influenced other provinces’ statutes.

The Act has broad application to some 3,350 public bodies, covering provincial departments and agencies and Crown corporations, including those with an entirely commercial mandate, such as Hydro Québec, Loto Québec, Radio Québec and the Société des alcools. The Court of Quebec has ruled that the subsidiaries of Crown corporations are not subject to the Act.

The Act also applies to urban and rural municipal bodies, school boards, subsidized private colleges, community colleges and universities, hospitals, nursing homes and senior citizen’s residences, community health centres, and regional health and social services boards. The courts and the Conseil de la magistrature are not subject to the Act, but the documents held by the Ministère de la Justice on their administration are.

The Commission d'accès à l'information itself is subject to the Act as well as Ministers’ offices and the National Assembly (its administrative structure, management, administrative reports and financial management) but the documents of members of the National Assembly are exempted. However, there are still a few grey areas since a case is currently before the Supreme Court of Canada concerning access to the expenditure accounts of these members.

The Commission d'accès à l'information is a quasi-judicial body composed of five members who are responsible for hearing requests for review of the decisions of bodies subject to the Act, supervise the carrying out of the Act, inquire into its degree of observance and give its opinion to the government on questions of jurisdiction. The Commission, its members and any person it mandates to conduct an investigation are invested with the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions, except the power to order imprisonment. Its budget is reviewed by a committee of the National Assembly, but is allocated by the Ministère des Relations avec les citoyens et de l'Immigration, through which it reports. The Commission files an annual report of its activities and a five year report on the application of the Act with the designated Minister. These reports are reviewed by a Parliamentary Committee.

At this point, none of the recommendations for legislative change made by the Commission in the last two of its five-year reports have been adopted.

The Quebec statute includes restrictions in terms of obligatory and optional access that are very similar to those found in other provincial statutes and the federal one. These restrictions include the protection of information affecting intergovernmental relations, negotiations between public bodies, the economy, the administration of justice and public security, the industrial secrets of third parties, administrative or political decisions and audits. Decisions made by the Ministers of the Conseil exécutif and the Conseil du Trésor are not accessible. The other documents of the Conseil exécutif are protected for a period of 25 years, but they may be made public before this period if their author consents. The parts of these documents that address analyses of data and options are made public by the Ministers on a regular basis. The Ministère du Conseil exécutif does not intervene in a Minister’s decision to release a part of a document prepared by the latter for the Conseil exécutif. Bill 122, which is currently before the National Assembly, proposes that decisions by the Conseil exécutif also be accessible after 25 years.

Access to documents is free of charge except for reproduction and transmission costs, which are indexed in accordance with the consumer price index, making this the most liberal program in Canada. Applicants must be informed ahead of time of the costs they will incur.

Access requests must normally be responded to within 20 days after they are received, with an additional 10 days with notification to the applicant. Failure to respond within that time constitutes a refusal to disclose. The Commission may authorize a public body to ignore requests that are obviously improper because of their volume or repetitious or systematic nature.

When a public body refuses to disclose a document or a part of a document, the applicant has 30 days to apply for review by the Commission. The Commission’s decisions are executory. They may only be appealed to the Court of Quebec on questions of law and jurisdiction.

The Act was amended in June 2001 by the adoption of the Act to establish a legal framework for information technology which sets out the rules governing retention, consultation and transmission of technologically-based documents.

It is estimated that the number of access to information requests is increasing but Quebec does not have any statistics on requests or their processing at this time.

Government representatives indicate that access to information under the Act constitutes only a minor part of all the government information that is communicated to the public. Both government and Commission representatives agree that emphasis should be placed on the active dissemination and informal disclosure of information. There is also agreement on the need to modernize the application of the Act to make it simpler and easier to administer and to make managers more accountable, better informed and more up to date on its contents.

Over the years, a significant body of case law has developed around the interpretation of the Act. Ministers’ offices are part of departments under the Act, but documents in a Minister’s office are only accessible if the Minister chooses to make them public. The Court of Quebec has specified that it is not the analysis of the contents of a document that helps determine whether it falls within this restriction, but rather its “attachment” to a Minister’s office. The Commission has ruled that from the moment when the Minister’s office has expressly or tacitly agreed to release a document to the public or within the department, this document ceases to be a Minister’s office document. This interpretation is currently being contested before the Court of Quebec.

Personal notes of public servants that are used solely as personal reminders would not be accessible as long as they are not shared or put on file. The Court of Quebec ruled that requests for information may not paralyze the operations of a public body. A new provision should be added to the Act enabling the Commission to authorize a body to disregard a request if processing it would seriously interfere with its activities.

According to the majority of the Commission’s case law, a body may not bring up new optional reasons to refuse a request once the deadline to respond has expired. The Court of Quebec’s opinion on this matter is split.

The Commission does not examine documents on site in public bodies. However, it may request that they produce the documents it deems appropriate and it may deliver a summons to testify. The onus of proof is always on the public body. The Commission only makes decisions on requests for review that are filed with it.

The Commission’s powers of investigation in terms of access are not expressly set out in the Act. This shortcoming should be corrected through legislation providing that the Commission can, of its own initiative or in response to a complaint, investigate any matter concerning access to a document and recommend or order the application of corrective measures by the public body.

Although there is no express provision in the Act for mediation, it plays a very important part in the Commission’s processes. The Commission’s lawyers are trained in mediation and they try to resolve requests for review of decisions by management, and are successful in 60% of cases. They are fully empowered to reach a settlement in requests for review. When mediation fails, the next stage is a formal hearing by a commissioner. The information disclosed during the mediation is not shared with the commissioner who makes the decision. Commissioners cannot delegate their powers. They are currently all lawyers, though they need not be. They are appointed by the National Assembly for a five-year term that may be renewed once.

Typically, hearings are public and the public bodies are represented by a lawyer. A portion of the hearing may be held in camera to preserve the confidentiality of the information. Discussions typically take more than 130 days. There is no set time limit for making a decision.

If a public body does not carry out a decision, an extremely rare occurrence, the Commission can get an enforcement order from the Superior Court. It is increasingly rare for parties to appeal the Commission’s decisions.

Commission officials report that the strength of the Quebec model is the reliance on mediation and the power to issue orders. On the other hand, they are concerned about the high costs associated with public hearings in the judicial districts. The Commission is looking at ways to move, at least in part, to paper-based appeals, which could prove to be more efficient. Finally, like all administrative tribunals with several members, the Commission must constantly concern itself with ensuring the consistency of its case law.

Neither the government’s or the Commission’s representatives see any advantage in setting up an internal review mechanism in public bodies as a first level of review, as exists in some countries. In their opinion, this would only serve to needlessly slow down the settlement of requests for review. However, they recognize the value of the provisions in the Quebec law that require public bodies to help applicants specify their requests.

The Commission acts as an expert advisor to the government on draft legislation concerning access to information and privacy. Its advice is highly respected. The Commission considers the five-year period ideally suited to its reporting on the application of the Act. Providing information to the public is not officially part of the Commission’s mandate but it nonetheless provides a great deal of information to the public.

The Commission plays a central part in the application of the Act. In its relations with the government, the Commission makes every effort to maintain a good climate based on co-operation and respect. Everyone agrees that effective access to information legislation is the tangible proof of a mature democracy.