Guide to FOIP-Chapter 2

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 2, Administration of FOIP. Updated 7 March 2023. 40 61 In any proceeding pursuant to this Act, the burden of establishing that access to the record applied for may or must be refused or granted is on the head concerned.56 For more on section 61 of FOIP and the burden of proof, see Section 61: Burden of Proof later in this Chapter. The court is required to determine whether the government institution was authorized to refuse access. Where its refusal was not authorized, the court is given the authority to order a government institution to give an applicant access to a record, subject to any conditions the court considers appropriate. Alternatively, the court may make any other order it considers appropriate.57 If the court finds that refusal was authorized (i.e., an exemption under FOIP applies), the court will not order the government institution to provide access regardless of whether the exemption was a mandatory or discretionary exemption. To elaborate further, this means that the court will not exercise the heads discretion for any applicable discretionary exemptions.58 For more on mandatory and discretionary exemptions, see the Guide to FOIP, Chapter 4, “Exemptions from the Right of Access”. For appeals of fee estimates, fee waivers, transfers of requests and privacy matters, if the court determines that the decision made by the government institution was not authorized under FOIP, the court may order the government institution to reconsider its decision and proceed in accordance with FOIP, subject to any conditions the court considers appropriate. The court may also make any order the court considers appropriate.59 Alternatively, if the court finds the decision made by the government institution was authorized, it will not order the government institution to reconsider.60 Several access to information and privacy matters have been appealed to the Court of King’s Bench for Saskatchewan. Some cases have gone further to the Court of Appeal for Saskatchewan. However, to date, no Saskatchewan access to information or privacy matter 56 General Motors Acceptance Corp. of Canada v. Saskatchewan Government Insurance, 1993 CanLII 9128 (SK CA) at [12]. 57 Evenson v Kelsey Trail Regional Health Authority, 2012 SKKB 382 (CanLII) at [6]. See also, The Freedom of Information and Protection of Privacy Act, SS 1990-91, c F-22.01 at s. 58(5). 58 The Freedom of Information and Protection of Privacy Act, SS 1990-91, c F-22.01 at s. 58(6). 59 The Freedom of Information and Protection of Privacy Act, SS 1990-91, c F-22.01 at s. 58(7). 60 The Freedom of Information and Protection of Privacy Act, SS 1990-91, c F-22.01 at s. 58(8).

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