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 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.