Did you know that when processing a request for access that concerns the applicable regulatory framework or its interpretation in a given situation, the person in charge of access to documents within a professional order would be well advised to consider whether the request is simply a request for information, or even a request for a legal opinion?
In Marcoux c. Chambre des notaires du Québec, the Commission d’accès à l’information (the “Commission”) considered the scope of the right of access provided under the Act respecting Access to documents held by public bodies and the Protection of personal information (the “Access Act”). The Commission was called upon to determine whether a request for access addressed to the Chambre des notaires du Québec (the “Chambre”) constituted a genuine request for access to documents within the meaning of the Access Act, or whether it was instead seeking to obtain a legal opinion from the Chambre.
Summary of the decision
In December 2024, the requester applied to the Chambre for access to specific information regarding the training, rules, and obligations imposed on notaries with respect to verifying a client’s ability to read and hear. The Chambre partially responded to this request by providing relevant training references but declined to act on the remaining portions of the access request regarding the rules and obligations imposed on notaries. The Chambre took the view that these portions of the request do not seek to obtain existing documents, but rather an opinion on the application of the law to a specific situation or particular case; in short, a legal opinion.
Seized of the application to review the Chambre’s response, the Commission began by reaffirming that articles 1.1 and 9 of the Access Act provide for a right of access to documents held by a professional order to the extent set out in the Professional Code. On this point, the requester claims that her access request relates to documents held by the Chambre and does not constitute a request for a legal opinion. Nor does her request make any mention of the notion of a legal opinion.
The Commission found that the access request is based on the premise that the rules and obligations applicable to notaries contain provisions governing the assessment of a person’s reading capacity. According to the Commission, through such a request, the requester seeks an opinion, or at least an analysis, on the application of the law to a specific situation. The Commission accordingly found that this is a request requiring an analysis in the nature of a legal opinion.
This conclusion was supported by several elements that emerged from an examination of the request’s content and wording, as well as the requester’s prior access requests to the Chambre. These elements indicated that the requester’s underlying objective presupposed that the Chambre would take a legal position and conduct an analysis of the applicable legislation and regulations, including the Notarial Act and the Code of ethics of notaries.
Key takeaways
For these reasons, the Commission concluded that the Chambre’s refusal was justified and that its decision does not warrant revision. This decision is a reminder that the Access Act is intended to provide access to existing documents and cannot be used to request legal advice from a public body. In other words, when a request is essentially for a legal interpretation or an opinion on the application of a rule to a particular case, it does not constitute a request for access to documents within the meaning of the Access Act. When an access request is in reality a request for a legal opinion, a public body is under no obligation to respond to it under the existing access to information legislation.