In Université de Montréal v. Savard, the Court of Québec allowed an appeal brought by the Université de Montréal against a decision of the Commission d’accès à l’information, concerning the meaning and scope of section 22 of the Act respecting Access to documents held by public bodies and the Protection of personal information (the “Access Act”).
The second paragraph of section 22 of the Access Act permits a public body to refuse to release “industrial, financial, commercial, scientific, or technical information that it owns if its disclosure would likely hamper negotiations in view of a contract, or result in losses for the body or in considerable profit for another person.”
At issue in this case is the interpretation of the expressions “cause losses” and “procure a considerable profit for another person”.
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Background
In his access to information request, the applicant sought documents related to courses and examinations at the Université de Montréal’s Faculty of Medicine. The University refused to grant access to certain documents of a pedagogical and technical nature, arguing that their disclosure was likely to cause it losses or to procure a profit for third parties.
Decision of the Commission d’accès à l’information
Seized of a request for review, the Commission d’accès à l’information rejected the University’s argument. In that decision, the Commission d’accès à l’information concluded that the University had not proven that the disclosure of the requested information would cause it “economic loss.”
On this point, the Commission relied in particular on a prior decision of the Court of Québec, Tremblay v. Société générale de financement du Québec, [2004] C.A.I. 604 (C.Q.), according to which, for sections 21, 22, 23 and 24 of the Access Act to apply, “there must be a finding of likely economic consequences.” The “economic impact” or “economic loss” criterion was subsequently adopted in the Commission’s case law: see, for example, P.G. v. Société des alcools du Québec, Prémont v. Hydro-Québec, and Halin v. Ministère des Relations internationales et de la Francophonie.
On this basis, the Commission therefore ordered the Université de Montréal to transmit the documents in dispute.
Judgment of the Court of Québec
On appeal, several years later, the Court of Québec decided otherwise. In its ruling, the Court instead found that section 22 of the Access Act does not specify the nature of the “loss” in question and therefore does not require the public body to demonstrate a risk of “economic loss.”
The Court also noted that, to invoke the exception provided for in the second paragraph of section 22 of the Access Act, a public body does not need to demonstrate that disclosure will actually cause it a loss. It need only establish that disclosure would likely result in one.
Conclusion
This decision is significant for public bodies subject to the Access Act. On the one hand, it is relatively rare for the Court of Québec to allow an appeal against a decision of the Commission d’accès à l’information concerning the interpretation of the Access Act. On the other hand, this decision clarifies the scope of the second paragraph of section 22 of the Access Act for public bodies in two respects:
- First, by specifying that the “loss” in question is not necessarily economic in nature;
- Second, by reaffirming that a public body need only prove a “likely risk,” not that the loss will actually materialize.
Finally, it is worth recalling that section 22 is analogous to sections 23 and 24 of the Access Act, which apply to information supplied to public bodies by third parties. In particular, a public body may not release information supplied by a third party where its disclosure would likely, among other things, cause that third party a loss. The Commission's earlier case law shows that the “economic loss” criterion has also been applied in this context. See, for example, Shyavitz v. Montréal-Ouest (Ville).
The Court of Québec’s decision on the scope of section 22 is therefore likely to facilitate reliance on sections 23 and 24 by third parties affected by access to information requests.