A journalist made a request under the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1 (the “Act”) for access to a document concerning the expenses of Members of the National Assembly which described the Member’s total payroll and expenses for employing staff and paying for professional services. The Commission d’accès à l’information (the “Commissioner”) refused disclosure of the information under ss. 34 and 57 of the Act; finding that the requested document had been prepared “for” a Member and could not be disclosed under s. 34 without the Member’s consent and that the Member could not be considered to constitute a public body within the meaning of s. 57.

26. November 2002 0

Administrative law – Access to information – Production of records – Public body – Definition – Judicial review – Standard of review – Reasonableness simpliciter

Macdonell v. Quebec (Commission d’accès à l’information), [2002] S.C.J. No. 71, Supreme Court of Canada, November 1, 2002, McLachlin C.J., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

A journalist made a request under the Act for access to documents concerning the expenses of Members of the National Assembly, including the expenses for all of the Member’s staff, as well as the identity and remuneration of workers who worked for the Member on contract. The person in charge of access to information at the National assembly denied the request with the explanation that the documents were produced for Members of the National Assembly and therefore belonged to an exempt class under s. 34 of the Act which required consent of the member for disclosure. In the case where one member consented to disclosure, the official also refused to disclose the document since it included personal information the disclosure of which was prohibited by ss. 53 and 57 of the Act.

The official’s decision was upheld by the Commissioner. The Court of Appeal denied leave to appeal that decision. The Superior Court granted the journalist’s application for judicial review of the Commissioner’s decision and found the Commissioner erred in law and made a patently unreasonable decision by interpreting s. 34 in a way that was inconsistent with the Act and Regulations as a whole. The majority of the Court of Appeal set aside the Superior Court’s decision, concluding that the Commissioner’s interpretation was not unreasonable. On appeal to the Supreme Court of Canada, the majority of the Court upheld the Commissioner’s decision and dismissed the appeal.

Per McLachlin C.J. and L’Heureux-Dubé, Gonthier, Iacobucci and Arbour JJ delivered by Gonthier J.: The standard of reasonableness applied to the interpretation of s. 34 by the Commissioner. The Commissioner’s decision respecting s. 34 was reasonable. Section 34 provides that “no person may have access to a document from the office of a member of the National Assembly or a document produced for that member by the services of the Assembly unless the member deems it expedient”. While exceptions to disclosure have generally been narrowly construed, that rule of interpretation only applies where the Act needs to be construed. Here, the wording of s. 34 makes no distinction between documents that are purely administrative and documents that are associated with the decision-making process. Given the clear wording of the provision, the need to reconcile the two fundamental rights provided in the Act, namely access to information and independence of Members, and the different treatment that the legislature provided for Members’ documents, it was reasonable for the Commissioner not to limit the exception in s. 34 to functions associated with the Members’ legislative activities. The only question that the Commissioner had to ask was whether the document had been produced “for” a Member. The document, which was provided directly to a Member, was produced for the Member so the Member may keep his or her own books and it was irrelevant that the document may also be used by the services of the National Assembly or may even belong to it. Since the conditions in s. 34 have been met, the document is exempt from access unless the Member consents.

The Member’s consent to disclosure cannot override the provisions of the Act relating to the confidential nature of nominative information. It was reasonable for the Commissioner to find that the names and salaries of the persons who were hired or given contracts of employment included in the document was nominative information pursuant to s. 53 of the Act. Section 55 provides that personal information which, by law, is public, is not nominative information. Section 57 provides that name and salary information relating to the personnel member of a public body is public information.

The Commissioner concluded that Members are not public bodies within the meaning of the Act, basing his decision on Québec (Assemblée nationale) v. Sauvé, [1995] C.A.I. 427 (C.Q.). The Commissioner’s conclusion was reasonable. The Act contains numerous distinctions between the National Assembly, as a public body, and Members, as components of that body, and a Member, acting alone, therefore cannot be confused with the National Assembly. Moreover, even if the majority found that each Member is a public body, the very large majority of the information in the document should be exempted from disclosure owing to its confidential nature.

Per Major, Bastarache, Binnie and LeBel JJ. delivered by Bastarache and LeBel (dissenting): The standard of review applicable under s. 34 is that of reasonableness. The Commissioner’s decision relating to s. 34 was unreasonable. By interpreting s. 34 without taking into account the purpose of the Act as a whole, the legislative context, and the specific purpose of the exception set out in s. 34, the Commissioner made an error that affected his analysis so seriously that it made it unreasonable. Section 34 relates solely to the documents of individual Members. A narrow interpretation of the exceptions could not reasonably have led to the conclusion that s. 34 applied to the requested document since that document is essentially an accounting statement prepared for the accounting service and not for the member. The purpose of the exceptions is to guarantee independence of the Member in performing his or her duties. It did not seem essential to a Member’s ability to perform his or her role to have the manner in which the Member spends public funds be protected from disclosure.

With respect to the Commissioner’s reliance on Sauvé, the dissenting judges held that the reasons in the Sauvé decision suffered from the same defect as the Commissioner’s reasons with regard to s. 34. The Court of Quebec analysed the Act literally, without considering its purpose, the justification needed for the exceptions to the principles of disclosure, or what is actually required with regard to the Member’s independence pursuant to s. 57. By adopting the reasons in Sauvé, the Commissioner thus adopted reasoning that does not meet the requirements of the standard of reasonableness. A Member is a public body for the purposes of s. 57. Section 34 would be largely pointless if the Member was not subject to s. 57.

To stay current with the new case law and emerging legal issues in this area, subscribe here.