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].
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