Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 3, Access to Records. Updated 5 May 2023. 115 Implicitly means that the confidentiality is understood even though there is no actual statement of confidentiality, agreement or other physical evidence of the understanding that the information will be kept confidential.182 Explicitly means that the request for confidentiality has been clearly expressed, distinctly stated or made definite. There may be documentary evidence that shows that the information was provided on the understanding that it would be kept confidential.183 Factors considered when determining whether a document was provided in confidence implicitly include (not exhaustive): • What is the nature of the information. Would a reasonable person regard it as confidential. Would it ordinarily be kept confidential by the party providing it or by the government institution.184 • Was the information treated consistently in a manner that indicated a concern for its protection by the party providing it and the government institution from the point at which it was provided until the present time.185 • Is the information available from sources to which the public has access.186 • Does the government institution have any internal policies or procedures that speak to how records or information such as that in question are to be handled confidentially. • Was there a mutual understanding that the information would be held in confidence. Mutual understanding means that the government institution and the party providing it both had the same understanding regarding the confidentiality of the information at the time it was provided. If one party intended the information to be kept confidential but the other did not, the information is not considered to have been provided in confidence. However, mutual understanding alone is not sufficient. Additional factors must exist.187 182 SK OIPC Review Reports F-2006-002 at [57], F-2009-001 at [62], F-2012-001/LA-2012-001 at [29], LA-2013-002 at [49], F-2014-002 at [47]. 183 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at pp. 104 and 105. 184 BC IPC Orders 331-1999 at [8], F13-01 at [23]; NS IPC Review Reports 17-03 at [34], 16-09 at [44]; PEI IPC Order FI-16-006 at [19]. 185 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 186 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 187 Jacques Whitford Environment Ltd. v. Canada (Minister of National Defence), 2001 FCT 556 at [40]; SK OIPC Review Reports F-2006-002 at [52], LA-2013-002 at [58] to [59]; ON IPC Order MO-1896 at p. 8; BC IPC Order F-11-08 at [32].
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