Guide to FOIP-Chapter 1

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].