Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 117 (i) the President of the Executive Council for which, or with respect to which, the record has been prepared; or (ii) in the absence or inability to act of the President, by the next senior member of the Executive Council who is present and able to act. Subsection 16(1)(d) of FOIP is a mandatory class-based exemption. It permits refusal of access in situations where release of a record could disclose a confidence of Cabinet including records that contain briefings to members of Cabinet in relation to matters that are before, or proposed to be brought before, Cabinet or any of its committees. It also permits refusal where release of a record could disclose matters that are the subject of consultations described in subsection 16(1)(c) of FOIP above. Cabinet confidences are generally defined as, in the broadest sense, the political secrets of Ministers individually and collectively, the disclosure of which would make it very difficult for the government to speak in unison before Parliament and the public.436 Including means that the list of information that follows is not complete (non-exhaustive). The examples in the provision are the types of information that could be presumed to disclose a confidence of the Executive Council (Cabinet).437 An important qualifier here is that the records must be for the purpose of briefing a minister in relation to matters before Cabinet, proposed to be brought before, or for use in a discussion with other ministers as be subsection 16(1)(c) of FOIP above.438 The following two-part test can be applied. However, only one of the questions needs to be answered in the affirmative for the exemption to apply. There may be circumstances where both questions apply and can be answered in the affirmative. 1. Does the record contain briefings to members of Cabinet in relation to matters that are before, or are proposed to be brought before, Cabinet or any of its committees? 436 Federal Access to Information and Privacy Legislation Annotated 2015 (Canada: Thomson Reuters Canada Limited, 2014) at page 1-644.4. 437 British Columbia Government Services, FOIPPA Policy and Procedures Manual at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/cabinet-local-public-body-confidences. Accessed June 26, 2019. 438 Office of the Information Commissioner of Canada, The Access to Information Act and Cabinet confidence: A Discussion of New Approaches, 1996 at p. 11.
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