12 August 2013

Access denied: CFLCo and Hydro-Quebec version #nlpoli

Churchill Falls (Labrador) Corporation tried but failed in 2012 in an effort to see hundreds of thousands of pages of confidential Hydro-Quebec documents on the 1969 Power Contract between CFLCo and Hydro-Quebec.

A decision by the Quebec access to information commissioner in November 2012 denied CF(L)Co access to the documents under a section of the provincial access to information law that excludes requests that are so large that answering them would interfere with  the normal operations of the public body.

Curiously enough that’s exactly the same ruling the Newfoundland and Labrador access commissioner made on a 2008 case involving a request for access to e-mails in the Premier’s Office. In his decision, filed in January 2009, the provincial access commissioner determined that:

the number of e-mails encompassed by the request was over 119,000. At a rate of 500 e-mails per day, it would take about 8 [sic] months to process the request. The Commissioner found that this was an unreasonable interference with the operations of Executive Council.


On March 5, 2012, CFLCO requested access to Hydro-Quebec documents dating from 1952 to 1969.  [google translation from the CanLii document]

During the period (from 1952 to 1969, Hydro-Québec Negotiated, and signed Eventually, on May 12, 1969, an electrical power contract with Churchill Falls (the "negotiations").

Pursuant to section 9 of the act respecting Access to Documents Held by public bodies and the Protection of personal information, RSQ, c A-2.1 , we request access to the following documents:

1. All documents, Including minutes, memoranda and reports, in possession of Hydro-Québec pertaining to the negotiations;

2. All documents in possession of Hydro-Québec reflecting communications or discussions Pertaining to the negotiations, including letters and notes of meetings or phone calls,  between Hydro-Québec's staff, managers, officers or commissioners and

a) elected members of the Duplessis, Sauvé, Barrette, Lesage gold Johnson Governments;

b) the staff or officers of the Ministry of Natural Resources;

c) executives of the Shawinigan Water and Power Company or of the Shawinigan Engineering Company;

d) Consolidated Edison of New York or its President Harland Forbes;

e) the Vermont New England Power Company ("VNEPCO") or its agents or spokesmen, including State Senator Fred Fayette of Vermont;

f) or, other power utilities of the city of Boston or the New England area;

3. AII reports, memoranda or correspondence produced by Elected Officials in the Duplessis, Sauvé, Barrette, Lesage, or Johnson Governments of the staff or officers of the Ministry of Natural Resources, in possession of Hydro-Quebec and pertaining to the negotiations.

Vermont history professor David Massell filed the request on behalf of CFLCO as part of its lawsuit against Hydro-Quebec over the fairness of the 1969 contract.  CFLCo retained Massell to write a summary of the events that led to the conclusion of the contract.  Massell visited the HQ archives three times in 2012 as part of the project.

HQ appealed to the access commissioner for a declaration that the company did not have to deal with the request because it was too large.

In its application, HQ contended that the request covered potentially 458 boxes of documents.  This could be reduced to about 80 boxes, but even then the contents covered  - conservatively – more than 160,000 pages of material.  Massell disputed those figures.

HQ also noted that the request covered third parties that would have to be consulted in order to comply with the provincial access law.  This could pose some difficulty since the companies involved may no longer exist or may have been taken over by other companies.

HQ estimated the request would consume the entire activities of one third of its archive staff for upwards of nine months.  Even if Massell reduced the request to 20 boxes,  this would still be too large to process in the 30 days required under the access laws, according to HQ’s submission.

The access commissioner held a hearing on the request in October 2012 and delivered the decision on November 30 authorizing Hydro-Quebec “to ignore the access request made ​​by the respondent on March 5, 2012.” [google translation]