In the recent case of Ville de Ste-Adèle v. M.L,[1] the Commission d’accès à l’information du Québec (the “Commission”) has rendered an authoritative decision on the characterization of “obviously improper applications” and the interpretation of section 137.1 of the Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information[2] (the “Access Act”).
This bulletin will summarize the salient points of the decision, by presenting: (1) the facts of the case; (2) the parties’ arguments; (3) the Commission’s decision; and (4) our comments.
1. Facts of the Case
The application by the town of Ste-Adèle (the “Body”) related to two access requests made by M.M.L. (the “Respondent”):
a) A request for access to a series of resolutions from 2004 to today, dated March 2016 (the “First Request”),
b) A request for access to the text of the bylaw concerning permits and certificates that existed in 2004 and other related information, dated April 2016 (the “Second Request”).
The requests were part of a series of 12 access requests made over a period of about three months. The Body argued that the Respondent’s requests [Translation] “suggest threats of legal action and the Respondent contests the responses to the requests, virtually systematically, by applying to the Commission.”[3] The evidence shows that a number of actions have been instituted between the Body and the Respondent for amounts totalling $6.6 million and resulting in approximately 150 to 160 pieces of correspondence being exchanged since the beginning of 2016.
The Body also argued that the Respondent had failed to pay the reproduction costs in order to obtain the documents related to the First Request.
2. Parties’ Arguments
The Body submitted that section 137.1 of the Access Act applied and that the requests were improper for the following reasons:
- The First Request reiterated an earlier request for access to which the Body had already replied and contained comments that may be compared to a formal notice of intention. The Body’s reply to this request indicated that the documents were available once the reproduction costs the Respondent was required to pay had been received (with no response from the Respondent);
- The Second Request was [Translation] “the last of the numerous access requests made by the Respondent in a short time period and ... [was] part of his system which sought to ‘go looking for trouble’ and hold the Body in default.”[4]
The Respondent stated that the Body had not discharged its burden of proof and there was no evidence to show that his access requests were harassing, systematic or repetitious. The Respondent concluded by reiterating that he had paid all the reproduction costs he was asked to pay by the Body in order to obtain documents.
3. Decision of the Commission
The Commission was ultimately required to rule on the applicability of section 137.1 of the Access Act, which reads as follows:
137.1. The Commission may authorize a public body to disregard applications that are obviously improper because of their number or their repetitious or systematic nature or an application whose processing could seriously interfere with the body’s activities.
The same applies if, in the opinion of the Commission, the applications are not consistent with the object of this Act concerning the protection of personal information.
The objective of that provision, which is an exceptional procedure and must be narrowly interpreted,[5] is to preserve [Translation] “the delicate balance between access by everyone to documents held by a public body and the reasonable exercise of such a legitimate right.”[6]
In its analysis, the Commission was asked to determine whether the requests at issue constituted an obviously improper exercise of the right of access, either because of the number of requests, their repetitious or systematic nature or because processing them could seriously interfere with the Body’s activities. We will review these various factors in turn.
a) Requests that are obviously improper becauseof their number
The Commission noted that there had been several successive access requests made by the Respondent within a short period of time (15 requests in less than a year, 13 of which were in the last four months).
b) Requests that are obviously improper because they are repetitious
The Commission noted the “repetitious” nature of the Respondent’s requests, that is, the recurrence of requests concerning the same subject or the total or partial repetition of the same requests.[7] In this case, the Respondent repeated his First Request because he was not satisfied with the reply obtained, in addition to having done the same thing a few weeks earlier (in January, February and March 2016). In addition, as noted by the Commission, the First Request was part of [Translation] “a series of successive and increasingly more detailed access requests whose purpose seems to be to fuel the numerous disputes between the parties.”[8]
c) Requests that are obviously improper because they are systematic
The Commission concluded that the Respondent’s requests were “systematic” in that they exhibited [Translation] “a combination of factors organized for the purpose of achieving a specific objective”, “a hierarchy of intention on the part of the requester.”[9] The Commission noted that the Respondent’s requests always led to more requests, giving the appearance of a “snowball effect”. The following excerpts from the decision are worth reproducing on this point:
[Translation] [58] This request is also part of the applicant’s “system”, as demonstrated by the evidence heard in this case, which consists of systematically making access requests, some of which resemble fishing expeditions, in order to find a weakness to be exploited, a person responsible to blame, or an action or challenge to institute.
[59] Although it is not contrary to the spirit of the Access Act to ask a body for various documents in order to evaluate the decisions made and actions taken, and, more generally, to hold it accountable for a particular situation, that right may not be exercised excessively and in an obviously improper way, as the legislature provided in enacting section 137.1 of the Access Act. The improper conduct includes unceasingly making access requests with an obvious intention of interfering with the body or in an intrusive manner and with a purpose foreign to the objectives of the Act and inconsistent with its spirit. The systematic nature of such requests makes them obviously improper.
d) Belligerent and contemptuous attitude of the Respondent
The Commission also took into account [Translation] “the belligerent and contemptuous attitude of the Respondent toward the personnel of the Body [that] was also evident in his numerous access requests.”[10] In fact, the Respondent’s requests generally included formal warnings, criticisms, accusations, or insinuations of incompetence on the part of the Body’s personnel. The Commission even added that it had “witnessed that attitude at the hearing, when the Respondent repeatedly objected to the Body’s evidence, became combative during cross-examination [of the Body’s representative], refused to cooperate during his own cross-examination, insisted on interrogating counsel for the Body on the grounds for this application, and constantly argued with the Commission.”[11]
In addition, in the Commission’s opinion, the preponderance of evidence showed that the Respondent had failed to pay the reproduction costs requested for two of his access requests and topick up the documents prepared for him. In conclusion, having regard to all of the foregoing, the Commission held that the Respondent’s requests were obviously improper and that the Body was therefore authorized to disregard them.
4. Comments
This decision contributes significantly to interpreting the meaning and purpose of section 137.1 of the Access Act: the Commission has provided another illustration of the “repetitious” nature of a request, condemned the “systematic approach” effect of access requests, and has taken the belligerent and contemptuous attitude of a person requesting access into account, while stating that this type of request need not be in a particular form. It is worth noting that improper behaviour during the review process before the Commission d’accès à l’information may be considered as a confirmation of the improper nature of a request.
More fundamentally, the Commission may be sending a simple message to individuals making access requests: “all things in moderation, except moderation.”
[1] Ville de Ste-Adèle v. M.L., 2017 QCCAI 27.
[2] Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, QCLR c. A-2.1.
[3] Ville de Ste-Adèle v. M.L., 2017 QCCAI 27, para 11.
[4] Ibid. para 29.
[5] Association professionnelle des ingénieurs du gouvernement du Québec v. Procureur général du Québec, 2002 CanLII 34559 (QC CQ), para 21.
[6] Ste-Catherine-de-la-Jacques-Cartier (Ville de) v. P.B., 2012 QCCAI 227, para 52.
[7] Ste-Catherine-de-la-Jacques-Cartier (Ville de) v. P.B., 2012 QCCAI 227, para 63.
[8] Ville de Ste-Adèle v. M.L., 2017 QCCAI 27, para 54.