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 37 It is relatively common for persons involved in a criminal or civil legal action to make an access to information request under FOIP for records relating to the case. Such requests should be processed like any other request.64 It is also relatively common to have both discovery processes and access to information processes going on at the same time.65 What can be accessed in a court proceeding is often less constrained than what is accessible under FOIP legislation.66 Government institutions sometimes argue that applicants cannot get information or records because of subsection 4(c) of FOIP. However, this is incorrect. The disclosure process works parallel to FOIP. FOIP does not limit what would normally be made available through disclosure. In Evenson v Saskatchewan (Ministry of Justice), 2013 SKQB 296 (CanLII), Justice Gabrielson confirmed that disclosure should not be narrowed or broadened based upon procedures found in other processes: [23] In accordance with the above comments, in my opinion, and even though in this case there has not been a judge’s ruling in respect to the disclosure provided in the criminal proceedings, that does not mean that in other proceedings there could not be a conflict between disclosure provided pursuant to the principles set out in R. v. Stinchcombe and the disclosure sought under the Act. They are two separate processes and for two separate purposes. Accordingly, in my opinion, a court should consider only the Act and the jurisprudence guiding its interpretation and not narrow or broaden the scope of the disclosure required by the Act based upon the procedure found in other processes such as the Stinchcombe disclosure process. In Alberta Information and Privacy Commissioner Order H2004-005, the Commissioner stated the following about the equivalent provision in Alberta’s Health Information Act: Section 3(a) of the Act expressly recognizes that information is otherwise available by law, and other procedures that enable parties to legal proceedings to obtain information outside the Act continue to exist. Although legislation is usually presumed to override the common law, this presumption is rebutted where the legislature clearly intends to preserve the common law. Read in its ordinary and grammatical sense, this section means that in the sphere of the “information otherwise available by law to a party to legal proceedings,” the Act is not intended to change or alter the information available to 64 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 1 at p. 5. 65 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 1 at p. 6. 66 Office of the Nunavut Information and Privacy Commissioner Review Report 16-108 at p. 6.