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Guide to FOIP-Chapter 1

GUIDE TO FOIP The Freedom of Information and Protection of Privacy Act Chapter 1 Purposes and Scope of FOIP

Table of Contents Overview.................................................................................................................................................................................1 Quasi-Constitutional Status ............................................................................................................................................1 The Purposes of FOIP ........................................................................................................................................................2 Object or Purpose Clause ............................................................................................................................................2 The Scope of FOIP...............................................................................................................................................................6 Government Institutions ..............................................................................................................................................6 Subsection 2(1)(d): Definition of a government institution ...................................................................7 Subsection 2(2): Bodies Not Included ............................................................................................................8 FOIP Applies......................................................................................................................................................................9 Section 5: Possession or control ......................................................................................................................9 Section 24: Personal Information ................................................................................................................ 15 FOIP Does Not Apply ................................................................................................................................................. 15 Subsection 3(1)(a) ............................................................................................................................................. 16 Information Services Corporation (ISC)..................................................................................................... 17 Subsection 3(1)(b) ............................................................................................................................................. 20 Subsection 3(1)(c) .............................................................................................................................................. 22 Subsection 3(3) ................................................................................................................................................... 24 Subsection 3(4) ................................................................................................................................................... 24 Subsection 24(1.1) ............................................................................................................................................. 25 Section 23 ............................................................................................................................................................ 26 Subsection 23(1)................................................................................................................................................. 27 Subsection 23(2)................................................................................................................................................. 29 Subsection 23(3)................................................................................................................................................. 29 Section 4: Existing Rights Preserved..................................................................................................................... 32 Subsection 4(a) ................................................................................................................................................... 34 Subsection 4(b) ................................................................................................................................................... 36 Subsection 4(c) ................................................................................................................................................... 36 Subsection 4(d) ................................................................................................................................................... 38 Subsection 4(e) ................................................................................................................................................... 39 Subsection 4(f) .................................................................................................................................................... 39

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 1 OVERVIEW This Chapter explains the purposes and scope of The Freedom of Information and Protection of Privacy Act (FOIP). What follows is non-binding guidance. Every matter should be considered on a case-by-case basis. This guidance is not intended to be an exhaustive authority on the interpretation of these provisions. Government institutions may wish to seek legal advice when deciding on how to interpret the Act. Government institutions should keep section 61 of FOIP in mind. Section 61 places the burden of proof for establishing that access to a record may or must be refused on the government institution. For more on the burden of proof, see the Guide to FOIP, Chapter 2, “Administration of FOIP”. This is a guide. QUASI-CONSTITUTIONAL STATUS In 1992, The Freedom of Information and Protection of Privacy Act (FOIP) was proclaimed. FOIP applies to “government institutions”. This captures all Ministries of the Saskatchewan Government plus Crown corporations, Boards, Commissions and Agencies prescribed in the Appendix at Part I of The Freedom of Information and Protection of Privacy Regulations. The tests, criteria and interpretations established in this Chapter reflect the precedents set by the current and/or former Information and Privacy Commissioners in Saskatchewan through the issuing of Review Reports. Court decisions from Saskatchewan affecting The Freedom of Information and Protection of Privacy Act (FOIP) will be followed. Where this office has not previously considered a section of FOIP, the Commissioner looked to other jurisdictions for guidance. This includes other Information and Privacy Commissioners’ Orders, Reports and/or other relevant resources. In addition, court decisions from across the country are relied upon where appropriate. This Chapter will be updated regularly to reflect any changes in precedent. This office will update the footer to reflect the last update. Using the electronic version directly from our website will ensure you are always using the most current version.

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 2 The Supreme Court of Canada has interpreted Acts, such as FOIP, as quasi-constitutional legislation. It follows that as fundamental rights, the rights to access and to privacy are interpreted generously, while the exceptions to these rights must be understood strictly.1 The phrase quasi-constitutional implies that certain rights, such as the right to access information held by government institutions, are fundamentally important in their nature because they reflect primary assumptions about the relationship between citizen and state. Though the right to access information is not entrenched in the Canadian Charter of Rights and Freedoms, this quasi-constitutional right is protected by legislation such as FOIP.2 A privileged status is afforded access and privacy legislation wherein it is typically paramount to other legislation. The importance of the rights protected by this legislation must always be borne in mind whenever considering any decisions which impact upon these rights. As the Privy Council has stated about quasi-constitutional Acts: Whether the quasi-constitutional status of these Acts derives from one of their provisions or from court decisions, the justification for it is the same. These Acts express values that are very important in Canada. Any derogation from them must be explicit. The requirement of explicit derogation protects the values expressed in those Acts to the maximum extent possible, short of entrenching those values in the Constitution. It also ensures accountability to the public for any decision to derogate.3 THE PURPOSES OF FOIP Object or Purpose Clause FOIP does not have an object or purpose clause. In the absence of an explicit purpose clause in FOIP, the Information and Privacy Commissioner (IPC) is required to infer the Legislative Assembly’s purpose in designing such an instrument. 1 Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Access to Information and Protection of Privacy in Canadian Democracy, May 5, 2009, also cited in Office of the Saskatchewan Information and Privacy Commissioner (SK OIPC) Review Report F-2010-002 at [44]. 2 SK OIPC Review Report F-2010-002 at [45]. 3 Privy Council Office, Guide to Making Federal Acts and Regulations, 2nd Ed., modified: 2017.

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 3 Both FOIP and The Local Authority Freedom of Information and Protection of Privacy Act started out as consecutive Bills receiving first reading in the Legislative Assembly on April 19, 1991.4 On June 18, 1991, the Lieutenant Governor spoke to prorogation and stated: Widespread consultations also revealed a significant element of demand for a less partisan government, the protection of democratic rights, and the accountability of elected governments. This spring the rules of the Legislative Assembly were changed, and the first Speaker elected, to respond to the first of these concerns. The government’s comprehensive package of legislation, including The Referendum and Plebiscite Act, The Freedom of Information and Protection of Privacy Act, and The Local Authority Freedom of Information and Protection of Privacy Act, are reforms introduced to make government more open and allow people to play a more direct role in the government....Finally, the two freedom of information Acts provide the public with the right to know the activities of government as it touches their personal lives....5 The IPC has, in the past, also been guided by decisions of the Saskatchewan Court of Appeal and the Saskatchewan Court of King’s Bench. In Amendt v. Canada Life Assurance Co., 1999 CanLII 12560 (SK KB) at [43], Goldenberg J. observed: The right of persons to apply for access to information in the hands of a government agency has no basis in common law. It is purely statutory. The Act is a code unto itself. The code sets out a detailed method for applications, reviews, and ultimately for appeals to the Court of Queen’s Bench. Absent compliance with the process contained therein, this Court has no jurisdiction to entertain the matter.6 In General Motors Acceptance Corp. of Canada v. Saskatchewan Government Insurance, 1993 CanLII 9128 (SK CA) at [11], the Saskatchewan Court of Appeal stated: The Act’s basic purpose reflects a general philosophy of full disclosure unless information is exempted under clearly delineated statutory language. There are specific exemptions from disclosure set forth in the Act, but these limited exemptions do not obscure the basic policy that disclosure, not secrecy is the dominant objective of the Act. That is not to say that the statutory exemptions are of little or no significance. We recognize that they are intended to have a meaningful reach and application. The Act provides for 4 SK OIPC Review Report F-2012-001/LA-2012-001 at [47]. 5 Saskatchewan Hansard, June 18, 1991, available at http://docs.legassembly.sk.ca/legdocs/Legislative%20Assembly/Hansard/21L4S/910618e.PDF. See also SK OIPC Review Reports F-2012-001/LA-2012-001 at [47] and LA-2012-003 at [27]. 6 Amendt v. Canada Life Assurance Co., 1999 CanLII 12560 (SK KB) at [43]. See also SK OIPC Review Report F-2004-003 at [7].

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 4 specific exemptions to take care of potential abuses. There are legitimate privacy interests that could be harmed by release of certain types of information. Accordingly, specific exemptions have been delineated to achieve a workable balance between the competing interests. The Act’s broad provisions for disclosure, coupled with specific exemptions, prescribe the “balance” struck between an individual’s right to privacy and the basic policy of opening agency records and action to public scrutiny.7 FOIP closely corresponds to provisions in the federal Access to Information Act. The purpose of the Access to Information Act is described as follows: 2(1) The purpose of this Act is to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.8 As stated by Mr. Justice La Forest in Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 SCR 403 at [61]: The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry. As Professor Donald C. Rowat explains in his classic article, “How Much Administrative Secrecy?” (1965), 31 Can. J. of Econ. and Pol Sci. 479, at p. 480: Parliament and the public cannot hope to call the Government to account without an adequate knowledge of what is going on; nor can they hope to participate in the decision-making process and contribute their talents to the formation of policy and legislation if that process is hidden from view.9 In Legislation on Public Access to Government Documents, the reasons for access to information legislation are discussed. The author, Honourable John Roberts, Secretary of State, concluded that the reasons for such legislation include: • Effective accountability - the public’s judgment of choices taken by government - depends on knowing the information and options available to the decision-makers. 7 General Motors Acceptance Corp. of Canada v. Saskatchewan Government Insurance, 1993 CanLII 9128 (SK CA) at [11]. See also SK OIPC Review Report F-2004-003 at [8]. 8 Access to Information Act, RSC 1985, c A-1 at subsection 2(1). 9 Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 SCR 403 at [61].

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 5 • Government documents often contain information vital to the effective participation of citizens and organizations in government decision-making. • (As) government has become the single most important storehouse of information about our society, information that is developed at public expense so should be publicly available wherever possible.10 Since the Access to Information Act came into force, provincial and territorial governments have enacted their own access to information and protection of privacy legislation. Many of those provincial instruments have included a more comprehensive purpose clause. Those purpose clauses tend to reflect and reinforce the approach taken by the federal Information Commissioner and numerous decisions of superior courts in Canada. A good example is section 2 of the British Columbia Freedom of Information and Protection of Privacy Act: 2(1) The purposes of this Act are to make public bodies more accountable to the public and to protect personal privacy by (a) giving the public a right of access to records, (b) giving individuals a right of access to, and a right to request corrections of, personal information about themselves, (c) specifying limited exceptions to the rights of access, (d) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and (e) providing for an independent review of decisions made under this Act.11 This summarizes and clearly identifies the purpose of legislation such as FOIP. The Office of the Saskatchewan Information and Privacy Commissioner (SK OIPC) deals with requests for review and privacy breach complaints by reference to these same five purposes, which are outlined below.12 1. The Right of Access to Records FOIP establishes a right of access by any person to records in the possession or control of a government institution. 10 Roberts, Honourable John. Secretary of State. June 1977. Legislation on Public Access to Government Documents, Government of Canada, Ministry of Supply and Services Canada at pp. 1 and 3. See also SK OIPC Review Report F-2004-003 at [9]. There is a typo in the report “1997” should be “1977”. 11 Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165 at subsection 2(1). 12 SK OIPC Review Report F-2004-003 at [9].

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 6 See Guide to FOIP, Chapter 3, “Access to Records” for more information about the right of access. 2. Access to an Individual’s Own Personal Information FOIP provides individuals with the right to access their own personal information. See Guide to FOIP, Chapter 3, “Access to Records” for more information on what section 31 of FOIP requires. 3. Right to Request Correction of Personal Information FOIP provides an individual with the right to request a government institution correct the individual’s personal information where the individual believes there is an error or omission. See Guide to FOIP, Chapter 6, “Protection of Privacy” for more information on the right of correction. 4. Protection of Personal Privacy FOIP provides individuals with the right to privacy of their personal information held by government institutions. This includes restrictions on the collection, use and/or disclosure of the individual’s personal information. See Guide to FOIP, Chapter 6, “Protection of Privacy” for more information on the protection of privacy. 5. Independent Review of Decisions FOIP provides for the independent review of decisions made by government institutions with respect to access and protection of privacy. Independent review is provided by the Information and Privacy Commissioner. See Guide to FOIP, Chapter 2, “Administration of FOIP” for more information on the Information and Privacy Commissioner’s role and responsibilities under FOIP. THE SCOPE OF FOIP Government Institutions FOIP applies to all government institutions as defined by subsection 2(1)(d) of FOIP and includes government institutions prescribed in the Appendix at Part I of The Freedom of Information and Protection of Privacy Regulations. All government institutions subject to FOIP

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 7 have statutory duties with regard to providing access to information and protecting personal information that is in the possession or control of the government institution. Subsection 2(1)(d): Definition of a government institution Interpretation 2(1) In this Act: … (d) “government institution” means, subject to subsection (2): (i) the office of Executive Council or any department, secretariat or other similar agency of the executive government of Saskatchewan; or (ii) any prescribed board, commission, Crown corporation or other body, or any prescribed portion of a board, commission, Crown corporation or other body, whose members or directors are appointed, in whole or in part: (A) by the Lieutenant Governor in Council; (B) by a member of the Executive Council; or (C) in the case of: (I) a board, commission or other body, by a Crown corporation; or (II) a Crown corporation, by another Crown corporation; Subsection 2(1)(d) of FOIP defines a government institution. Any body or organization that fits under this definition is subject to FOIP. Subsection 2(1)(d)(ii) of FOIP uses the phrase “any prescribed board...”. The meaning of this can be found at subsection 2(1)(h) of FOIP which provides: 2(1) In this Act: … (h) “prescribed” means prescribed in the regulations; Therefore, for subsection 2(1)(d)(ii) of FOIP, a body that is “prescribed” means any body listed in Part I of the Appendix of The Freedom of Information and Protection of Privacy Regulations (FOIP Regulations).

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 8 To further this, subsection 3(a) of the FOIP Regulations indicates bodies listed in Part I of the Appendix are prescribed as government institutions. Subsection 2(2): Bodies Not Included Interpretation 2(2) “Government institution” does not include: (a) a corporation the share capital of which is owned in whole or in part by a person other than the Government of Saskatchewan or an agency of it; (b) the Legislative Assembly Service or, subject to subsections 3(3) and (4), offices of members of the Assembly or members of the Executive Council; or (c) the Court of Appeal, Her Majesty’s Court of Queen’s Bench for Saskatchewan or the Provincial Court of Saskatchewan. Bodies that are excluded from the definition of a government institution include those outlined at subsection 2(2) of FOIP. This includes: • Courts such as the Court of King’s Bench for Saskatchewan.13 • The Legislative Assembly Service and offices of members of the Legislative Assembly. • Members of Executive Council such as ministers’ offices. This means records held by any of these bodies are not subject to the access provisions and, in some instances, the privacy provisions set out in FOIP. However, see Subsection 3(3) and Subsection 3(4), later in this Chapter for more on the privacy provisions that apply to the Legislative Assembly Service and offices of members of the Assembly or members of the Executive Council. 13 FOIP still refers to the Court of Queen’s Bench at subsection 2(2)(c) but this changed in 2022 to the Court of King’s Bench. Future amendments to FOIP will likely capture and reflect this.

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 9 FOIP Applies Section 5: Possession or control Right of access 5 Subject to this Act and the regulations, every person has a right to and, on an application made in accordance with this Part, shall be permitted access to records that are in the possession or under the control of a government institution. [emphasis added] FOIP applies to any records in the “possession or under the control of a government institution”. Section 5 of FOIP provides that every person has a right to request access to records that are in the possession or under the control of a government institution. Therefore, FOIP only applies to records that are in a government institution’s possession or control. A record is defined at subsection 2(1)(i) of FOIP as “a record of information in any form and includes information that is written, photographed, recorded or stored in any manner, but does not include computer programs or other mechanisms that produce records”. There are times when possession or control of records is not easily established. For that reason, the following terms, factors, and two-part test have been established. Possession is physical possession plus a measure of control over the record.14 The mere possession of a record is not enough, there must be some right to deal with the records and some responsibility for their care and protection. For this reason, the definition for “possession” includes a “measure of control”. This originates from the Office of the Ontario Information and Privacy Commissioner Order P-239 at paragraph [4] and is also 14 SK OIPC Review Reports F-2014-007 at [10] and LA-2010-002 at [93]. The mere possession is not enough, there must be some right to deal with the records and some responsibility for their care and protection. This definition that includes a “measure of control” originates from the Office of the Ontario Information and Privacy Commissioner (ON IPC) Order P-239 at [4].

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 10 followed by the Office of the Information and Privacy Commissioner of British Columbia in several Orders including Order 309-1999 in which the following is stated at paragraph [50]: Custody [possession] of records requires more than that the records be located on particular premises. In order for a public body to have custody [possession] of records, the public body must have immediate charge and control of these records, including some legal responsibility for their safekeeping, care, protection, or preservation. Control connotes authority. A record is under the control of a government institution when the government institution has the authority to manage the record including restricting, regulating, and administering its use, disclosure, or disposition.15 Possession and control are different things. It is conceivable that a government institution might have possession but not control of a record or that it might have control but not possession.16 Section 5 uses the word, “or” which indicates that only one of “possession” or “control” is required. If a government institution has either possession or control of a record, FOIP applies to that record.17 To determine whether a government institution has a measure of control over a record(s), both parts of the following two-part test must be met: 1. Do the contents of the document relate to a government institution matter? The first question acts as a useful screening device. If the answer is no that ends the inquiry. If the answer is yes, the inquiry into control continues.18 Continue to the second part of the test. 15 SK OIPC Review Report F-2008-002 at [35]. 16 SK OIPC Review Report F-2008-002 at [22]. 17 SK OIPC Review Report LA-2010-002 at [43]. 18 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306 at [55].

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 11 Unsolicited Information19 An individual may submit personal information on their own initiative without the information being requested by a government institution. Receipt of this information is not considered a collection unless the government institution keeps or uses the information.20 In other words, if the government institution keeps it, it should ensure it has authority to do so under section 25 of FOIP. If not, return it or safely destroy it. In addition, keeping it means the government institution has possession and/or control of the personal information. If a government institution does not have specific authority to collect unsolicited personal information and the information is not necessary for an operating program or activity of the government institution, it is not an authorized collection. The government institution should adopt a policy of either returning the unsolicited information or destroying it in accordance with a transitory records schedule.21 Personal emails of employees22 When a government employee uses their workplace email address to send and receive personal emails completely unrelated to their work, those emails are not subject to disclosure to members of the public who request them under FOIP. The terms “possession” and “control” do not include private communications of employees unrelated to government business. It can be confidently predicted that any government employee who works in an office setting will have stored, somewhere in that office, documents that have nothing whatsoever to do with their job, but which are purely personal in nature. Such documents can range from the most intimately personal documents (such as medical records) to the most mundane (such as a list of household chores). It cannot be suggested that employees of an institution governed by FOIP are themselves subject to that legislation in respect of any piece of personal material 19 From Guide to FOIP, Chapter 6: “Protection of Privacy” at Section 25, Unsolicited Information. 20 Ministry of Government and Consumer Services, Information, Privacy and Archives, Freedom of Ontario Information and Protection of Privacy Manual at p. 140. Available at https://files.ontario.ca/books/foi_privacy_manual_-_final-v02-2018-03-08-en-accessible.pdf. Accessed December 1, 2022. See also SK OIPC Investigation Reports F-2012-002 at [61] and F-2012-004 at [77]. 21 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 7, p. 239. See also SK OIPC Investigation Report F-2012-002 at [60]. 22 The issue of possession & control can come up when it involves the personal emails or records of employees. In addition to the references noted in this section below, see also Saskatchewan Government and General Employees Union v Unifor Local 481, 2015 CanLII 28482 (SK LA).

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 12 they happen to have in their offices at any given time. That would clearly not be contemplated as being within the intent and purpose of FOIP.23 While the expectation of privacy may be somewhat circumscribed, there is still both a right to and a reasonable expectation of privacy in relation to certain personal information contained on or in government owned equipment and accounts.24 2. Can the government institution reasonably expect to obtain a copy of the document upon request?25 All factors must be considered when determining the second question. These factors include: • The substantive content of the record. • The circumstances in which it was created. • The legal relationship between the government institution and the record holder.26 The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is met.27 If both test questions are answered in the affirmative, the document is under the control of the government institution. The following factors may also be considered if it is still unclear whether the government institution has “control” of the records at issue: • The record was created by a staff member, an officer, or a member of the government institution in the course of his or her duties performed for the government institution. • The record was created by an outside consultant for the government institution. 23 See City of Ottawa v. Ontario, 2010 ONSC 6835 (CanLII) at [37]. See also SK OIPC Review Report F2014-007. 24 Office of the Northwest Territories Information and Privacy Commissioner (NWT IPC) Review Report 20-247 at [37]. 25 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306 at [55] and [56]. 26 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306 at [56]. 27 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306 at [56].

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 13 • The government institution possesses the record, either because it has been voluntarily provided by the creator or pursuant to a mandatory, statutory or employment requirement. • An employee of the government institution possesses the record for the purposes of his or her duties performed for the government institution. • The record is specified in a contract as being under the control of a government institution and there is no understanding or agreement that the records are not to be disclosed. • The content of the record relates to the government institution’s mandate and core, central or basic functions. • The government institution has a right of possession of the record. • The government institution has the authority to regulate the record’s use and disposition. • The government institution paid for the creation of the records. • The government institution has relied upon the record to a substantial extent. • The record is closely integrated with other records held by the government institution. • A contract permits the government institution to inspect, review and/or possess copies of the records the contractor produced, received, or acquired. • The government institution’s customary practice in relation to possession or control of records of this nature in similar circumstances. • The customary practice of other bodies in a similar trade, calling or profession in relation to possession or control of records of this nature in similar circumstances; and • The owner of the records.28 More than one agency may have control of the same record at the same time. The control exercised by two different organizations need not be co-extensive and may be uneven between the two organizations. Any analysis of possession and control needs to ensure that the words have different meanings.29 28 The possession/control test has evolved over the years in SK OIPC Review Reports. Earlier SK OIPC Review Reports relied on five factors. The first SK OIPC Review Report to list the five factors was F2008-002 at [27]. This changed to 15 factors in SK OIPC Review Report LA-2010-002 at [60] and [61]. The 15 factors originate from the Office of the British Columbia Information and Privacy Commissioner (BC IPC) Order F10-01. Following the Supreme Court of Canada decision Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306, SK OIPC Review Reports shifted to the two-part test from this decision. The 15 factors are used to supplement the test and assist with determining possession and/or control. They are not intended to replace the two-part test. 29 SK OIPC Review Report LA-2010-002 at [55].

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 14 IPC Findings In Review Report F-2014-007, the Commissioner reviewed a denial of access involving the Ministry of Justice (Justice). An applicant had requested any records containing the name of an individual written, processed or possessed by a specific government employee. Justice responded to the request indicating that it did not have any responsive records in its possession or control and that any records were the personal records of the government employee which it described as emails. The applicant requested a review by the Commissioner. Upon review, the Commissioner applied the 15 factors noted in this Chapter (this was prior to the two-part Supreme Court of Canada test). The Commissioner found that Justice had possession of the records as the emails exist on the government email server. When considering “control”, the Commissioner noted that in support of its position that the emails were of a personal nature and not government business, Justice provided a sample email which was a letter sent from a family member to the government employee at his work address and the contents was of a personal nature. After considering the 15 factors, the Commissioner determined that Justice did not have a measure of control over the records. This finding was consistent with City of Ottawa v. Ontario, 2010 ONSC 6835 which also dealt with personal emails in the possession of an employer. In Review Report 007-2019, the Commissioner reviewed a denial of access involving the former Ministry of Central Services (Central Services). An applicant had requested access to personal emails sent and received from the applicant’s (a former employee) Government of Saskatchewan email account. Central Services responded to the request indicating that any responsive records were personal emails that were outside the scope of FOIP and not in the possession or control of Central Services. Upon review, the Commissioner found that any emails sent or received by the applicant constituting their personal emails, that were retained on the backup tapes, were not in the possession or control of Central Services for the purposes of FOIP. In Review Report 297-2021, the Commissioner found that a portion of an applicant’s access to information request sent to the Ministry of Justice involved information maintained by ISC in the public registry. The Commissioner found the Ministry of Justice still maintained control of the information. As a result, the Ministry of Justice directed ISC to conduct an additional search for responsive records. ISC located an additional email chain.

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 15 Section 24: Personal Information FOIP applies to personal information recorded in any form in the possession or control of a government institution. To qualify as personal information, two elements must exist: 1. An identifiable individual 2. Information that is personal in nature Some examples of what could constitute personal information include: • The individual’s race, national or ethnic origin, colour or religious or political beliefs or associations. • The individual’s age, sex, marital status or family status. • Information about the individual’s educational, financial, employment or criminal history, including criminal records, whether or not a pardon has been given. • An identifying number, symbol or other particular assigned to the individual. • Anyone else’s opinions about the individual. • The individual’s name, home or business address or home or business telephone number. • The individual’s personal views or opinions, except if they are about someone else.30 For more information about what constitutes personal information, see the Guide to FOIP, Chapter 6, “Protection of Privacy”. FOIP Does Not Apply Application 3(1) This Act does not apply to: (a) published material or material that is available for purchase by the public; (b) material that is a matter of public record; or (c) material that is placed in the custody of the Provincial Archives of Saskatchewan by or on behalf of persons or organizations other than government institutions. 30 The Freedom of Information and Protection of Privacy Act, SS 1990-91, c F-22.01 at subsection 24(1).

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 16 Subsection 3(1) of FOIP provides that certain information and records in the possession or control of a government institution are excluded from the application of FOIP. In some cases, another process is available to obtain access to these records. See Section 4: Existing Rights Preserved, later in this Chapter. Subsection 3(1)(a) Application 3(1) This Act does not apply to: (a) published material or material that is available for purchase by the public; FOIP does not apply to published material or material that is available for purchase by the public. Published means to make known to people in general…an advising of the public or making known of something to the public for a purpose.31 When considering whether a record or information is published, the government institution should confirm that: • The specific information or record requested is published (what data elements are actually published).32 • There is a way for the public to access the published record or information. Where FOIP does not apply to a public record, it would still apply to all actions related to collection or use of data. Government institutions are best served by determining what data elements are published or made part of a public record. Best practice when publishing information or putting it in a public record, would be to include the least amount of personal information. This is particularly relevant when posting to the internet where the public record is in fact online and searchable. Publishing online means the information is potentially available to six to nine billion people at any given time.33 31 Originated from Black, Henry Campbell, 1979. Black’s Law Dictionary, 5th Edition St. Paul, Minn.: West Group. Adopted by the ON IPC in Order P-204 at p. 4. Adopted by SK OIPC in Review Report 249-2017 at [7]. 32 SK OIPC Investigation Report 249-2017 at [22]. 33 SK OIPC Investigation Report 249-2017 at [22].

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 17 Material that is available to purchase means that a pricing structure is in place for all who wish to obtain the information or record.34 When considering whether a record or information is available to purchase, the government institution should confirm that: • The specific information or record requested is available for purchase. • There is a way for the public to purchase the record or information (i.e., website, office to attend). • A pricing structure exists for all who wish to obtain the information or record. In some circumstances, information or records are available through a public registry. A registry means a registry established or continued pursuant to a public registry statute and includes information provided to, and the data created or maintained in the operation of, a public registry statute.35 It can also be an electronic registry. Examples include the Information Services Corporation (ISC) land titles registry and the corporate registry. These registries provide information or records. Purchases can be made by attending ISC or through its website. There is also a fee structure in place for anyone wishing to purchase certain registry information. Some information is available free of charge. When relying on this provision, the government institution should ensure the publicly available record is the record or information being requested by an applicant. Further, applicants should not be required to compile small pieces of information from a variety of sources to obtain a complete version of a record that could be disclosed.36 Information Services Corporation (ISC) Information Services Corporation (ISC) oversees several public registries for the Government of Saskatchewan. 34 Adapted from ON IPC Order MO-1693 at p.16. 35 Subsection 2(1)(i) of The Operation of Public Registry Statutes Act, SS 2013, c O-4.2. Subsection 2(1)(h) of this Act also defines “public registry statute” as an Act designated by subsection (2) with respect to a service agreement that has been entered into and includes regulations or an Act for which a contractor is authorized to exercise powers or fulfill duties in accordance with subsection 10(1) and includes regulations. 36 ON IPC Order MO-3191-F at [86], [87] and [88].

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 18 Subsection 2(1)(a) of The Operation of Public Registry Statutes Act establishes the relationship between the Government of Saskatchewan and a “contractor”: 2(1) In this Act: (a) “contractor” means, with respect to a public registry statute, a person with whom the minister has entered into a service agreement; ISC is a “contractor” as defined above. However, ownership of the information in the registries remains with the Government of Saskatchewan as per subsection 11(1) of The Operation of Public Registry Statutes Act which provides: 11(1) All information and records in the registries are the property of the Government of Saskatchewan. The Ministry of Justice is the administrator of The Operation of Public Registry Statutes Act and has established the Office of Public Registry Administration within the ministry. A summary of The Operation of Public Registry Statutes Act is as follows: The Operation of Public Registry Statutes Act: • Created the Office of Public Registry Administration. • Allowed the Government of Saskatchewan to enter into a service agreement with a business corporation, Information Services Corporation (ISC), to operate and manage the public registries on behalf of the Government. • Maintained Government ownership of all registry data. • Continued Government guarantee of title and assurance coverage for certain errors on title. • Maintained the quasi-judicial decision-making within Government by requiring the registry officers (Registrar of Titles, Controller of Surveys, Director of Corporations, Registrar of Cooperatives, and Registrar of Personal Property Security) to be employed by the Government. … The service agreement with ISC covers the Land Registry, the Land Surveys Directory, the Personal Property Registry, the Corporate Registry, and the Common Business Identifiers Program (CBI). The Public can access these registries through ISC, but Government retains ultimate

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 19 responsibility for the registries. The procedures for registering or searching documents in the public registries and the legal rights of people using public registries remain unchanged.37 In Review Report 297-2021, the Commissioner found that a portion of an applicant’s access to information request sent to the Ministry of Justice involved information maintained by ISC in the public registry. The Commissioner found the Ministry of Justice still maintained control of the information. This was a result of the relationship between the Ministry of Justice and ISC that is established in The Operation of Public Registry Statutes Act.38 IPC Findings In Review Report 235-2016, the Commissioner found that FOIP did not apply to records stored within a registry that any person may search provided they pay a fee. The registry was the Mineral Administration Registry System Saskatchewan (MARS). In Review Report 277-2016, the Commissioner considered the Ministry of Economy’s (Economy) application of subsection 29(1) of FOIP to a map identifying parcels of land owned by individuals. The Commissioner found that the information on the map was publicly available through ISC at no cost and recommended release of the map. In Review Report LA-2007-001, the Commissioner found that a tax certificate enabled by section 395 of The Rural Municipalities Act (RMA) qualified as “material available for purchase by the public”. If the applicant wanted the data elements included in the tax certificate, it would be excluded by virtue of the equivalent subsection 3(1)(a) of (LA FOIP). The applicant’s remedy would be to pay the appropriate fee and purchase the relevant tax certificates. The Commissioner also determined that subsection 3(1)(a) of LA FOIP had no requirement that information already available to anyone as “published material” within the meaning of subsection 3(1)(a) of LA FOIP need all be contained in a single document or format. All of the applicant’s requested information could be purchased through a combination of tax certificates and title searches from ISC. In Review Report 297-2021, the Commissioner found that a portion of an applicant’s access to information request sent to the Ministry of Justice involved information maintained by ISC in the public registry. The Commissioner found the Ministry of Justice still maintained control 37 Government of Saskatchewan, Publications, Summary – the Operation of Public Registry Statutes Act, available at https://publications.saskatchewan.ca/#/products/114854. Accessed February 27, 2023. 38 SK OIPC Review Report 297-2021 at [24]. The Commissioner considered the relationship between ISC and the Government of Saskatchewan for the first time.

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 1, Purposes and Scope of FOIP. Updated 7 March 2023 20 of the information. As a result, the Ministry of Justice directed ISC to conduct an additional search for responsive records. ISC located an email chain. Subsection 3(1)(b) Application 3(1) This Act does not apply to: … (b) material that is a matter of public record; or FOIP does not apply to material that is a “matter of public record”. No definition of the term “matter of public record” appears in FOIP and there has not been a great deal of judicial comment on that term, especially in the context of similar “access to information” statutes.39 A matter of public record is defined as documents that one would typically find in a public register that the members of the public have ready access to.40 A “matter of public record” would be information collected and maintained specifically for the purpose of creating a record available to the general public. A good example would be the land titles registry operated by ISC.41 The only other province with freedom of information legislation that appears to contain the same “matter of public record” exemption provision as set out in subsection 3(1)(b) of FOIP is Nova Scotia. Subsection 4(2)(b) of The Freedom of Information and Protection of Privacy Act, SNS 1993, c 5, reads identically to subsection 3(1)(b) of FOIP. Courts in that province have endorsed the same definitions of “matter of public record” as were endorsed in Germain v. Automobile Injury Appeal Commission, 2009 SKQB 106 (CanLII).42 To be a “matter of public record” two characteristics must be present: i. The record is held by a government institution that is under a duty to keep or collect it. 39 605499 Saskatchewan Ltd. v Rifle Shot Oil Corp., 2019 SKCA 133 at [67]. 40 SK OIPC Review Reports LA-2007-002 at [28] and 249-2017 at [8]. 41 SK OIPC Review Reports LA-2007-002 at [28]. Also cited in 605499 Saskatchewan Ltd. v Rifle Shot Oil Corp., 2019 SKCA 133 (CanLII) at [65]. 42 605499 Saskatchewan Ltd. v Rifle Shot Oil Corp., 2019 SKCA 133 (CanLII) at [66].

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