Is Confidential Information in Your Municipal Archives Provided by Contractors Actually Available to Anyone?
This article first appeared in French in the summer 2019 edition of the periodical Carrefour of the Quebec Corporation of chartered municipal officers (COMAQ).
Over the last few years, Quebec’s Access to Information Commission (“AIC”) has rendered several decisions on the concept of “municipal archives”, a term which is found in legislation pertaining to municipalities1, particularly pursuant to access to information requests for the contents of bids received following a public call for tenders.
Knowing whether a document is part of a municipality’s archives is important. For the right to access municipal archives is considerably broader than the analogous right under the Act respecting Access to documents held by public bodies and the Protection of personal information (the “Access Act”). Thus, a contractor cannot invoke sections 23 and 24 of the Access Act in order to protect commercial and financial information it sent to the municipality if that information is in the municipality’s archives, subject to the rules on the protection of personal information2. Such information of the contractor may include the breakdown of a total price, details of its financial guarantees, and the responses provided by it pursuant to the various selection criteria in a call for tenders.
As the term “archives” is not defined in municipal legislation, the AIC has occasionally referred to the definition in section 2 of The Archives Act, i.e. “the body of documents of all kinds, regardless of date, created or received by a person or body in meeting requirements or carrying on activities, preserved for their general information value”3. This broad definition has had the effect of considerably increasing the number of access requests for documents held by municipalities, as documents that cannot be characterized as being part of the municipal archives are rare indeed. Based on this interpretation, the AIC has already ordered the City of Montreal to provide a third party with all the bids received pursuant to calls for tenders4.
Several decisions however have not applied this broad definition. In Deveau v. Municipalité de Cantley5, the AIC took the view that the concept of “archives” to be applied was that developed by the Superior Court in a 1962 decision6, to the effect that the term means all documents received from third parties or submitted by municipal officers and that were deliberated on by council. This restrictive interpretation seems to be that which prevails in the decisions of the AIC7, but developments in this regard can be anticipated in coming years.
In closing, we would like to stress that once a document is submitted to council for deliberation, it becomes an integral part of the municipality’s archives and is consequently available to anyone, subject to the rules governing the protection of personal information. In our view it is thus important for every municipality to reflect on and review its policies in this regard in order to find an appropriate balance between providing council with the documents it needs in order to exercise the powers allocated to it, and maintaining the trust and confidence of bidders in the confidential treatment they expect to be afforded the information they provide with a view to obtaining a municipal contract.
1 Section 114.2 of the Cities and Towns Act and section 209 of the Municipal Code of Québec
2 Section 171(1) of the Act respecting Access to documents held by public bodies and the Protection of personal information
3 See in particular M. G. v. Saguenay (Ville de), 2014 QCCAI 120; E.J. v. Québec (Ville de), 2015 QCCAI 16; J.H. v. Québec (Ville de), 2015 QCCAI 197; L.G. v. Montréal (Ville de), 2016 QCCAI 184. These decisions were all rendered by administrative judge Hélène Grenier.
4 L.G. v. Montréal (Ville de), 2016 QCCAI 184.
5 Deveau Avocats v. Cantley (Municipalité de), 2016 QCCAI 258
6 Garneau v. Laplante,  C.S. 698
7 See for example Nordikeau Inc. v. Ville de Montréal, 2017 QCCAI 75; G.H. v. MRC du Haut-Saint-Laurent, 2017 QCCAI 258; Lavergne v. Shawinigan (Ville), 2018 QCCAI 246.