Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 2, Administration of FOIP. Updated 7 March 2023. 47 Commissioner further found that Health did not meet the burden of proof in demonstrating that the transfer was proper under FOIP. Affidavit Evidence An affidavit is a declaration of facts written down and sworn or affirmed to be true by a party who has personal knowledge of the records or matters at issue in a review or investigation.83 An affidavit should be sworn or affirmed before a Commissioner for Oaths or a Notary Public. There are serious legal consequences for a person who swears a false affidavit.84 Affidavits may be desirable because, unlike other statements made to the Commissioner, an affidavit is evidence given under oath and makes a stronger case. A party is free to submit affidavit evidence in a review or investigation. In some circumstances, the Commissioner may request an affidavit to assist in determining factual issues in a review or investigation. For example, the Commissioner may request an affidavit where there is a question as to whether a reasonable or adequate search was undertaken for responsive records or where facts asserted by the government institution are contradictory or inconsistent with other material. Following the decision of the Court of Appeal for Saskatchewan in University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner, (2018), the Commissioner is requiring an affidavit from the head where the government institution is claiming solicitor-client privilege over information or records. See The Rules of Procedure for more assistance with the process when claiming solicitor-client privilege over information or records. For further guidance on using affidavits and for a sample format that can be used, see IPC resource, Using Affidavits in a Review with the IPC and The Rules of Procedure. 83 Service Alberta, FOIP Bulletin No. 9, Burden of Proof, November 2009 at p. 9. 84 Service Alberta, FOIP Bulletin No. 9, Burden of Proof, November 2009 at p. 9.
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