Guide to FOIP-Chapter 4

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 123 Subsection 16(2)(b) of FOIP recognizes that the Executive Council may lift the designation of Cabinet confidence from a record which has been prepared under its auspices. This consent is not a regular or normal practice.462 With respect to are words of the widest possible scope; the phrase is probably the widest of any expression intended to convey some connection between two related subject matters.463 Subsection 16(2)(b) does not impose a requirement on the head of a government institution to seek the consent of Cabinet to release the relevant record. What the section requires, at minimum, is that the head turn his or her mind to the issue. This means considering whether to request consent in relation to a request for access. Only the Cabinet for which, or in respect of which, a record was prepared can consent to its release.464 Subsection 16(2)(b) provides no express guidance on appropriate criteria for a head to consider in deciding whether to seek Cabinet consent. These criteria will develop with time and experience, but could perhaps include the following: • The subject matter contained in the records. • Whether or not the government policy contained in the records has been announced or implemented. • Whether the record would reveal the nature of Cabinet discussion on the position of an institution. • Whether the records have, in fact, been considered by the Cabinet. This list is by no means exhaustive or definitive and is only included in an effort to identify examples of the types of criteria that could be considered.465 Before releasing, if the record contains the personal information of a deceased individual, the rules around disclosure under section 30 of FOIP must be considered. For more on section 30 see the Guide to FOIP, Chapter 6, “Protection of Privacy.” 462 Office of the Information Commissioner of Canada, The Access to Information Act and Cabinet confidence: A Discussion of New Approaches, 1996 at p. 11. 463 The Supreme Court of Canada (SCC) established the meaning of the phrase “in respect of” in Nowegijick v. The Queen, [1983] 1 SCR 29, 1983 CanLII 18 (SCC) at [39]. The SCC later applied the same interpretation to the phrase “with respect to” in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 SCR 743, 1999 CanLII 680 (SCC) at [15] to [17]. Summary of this can be found in Gardner, J., and Gardner K. (2016) Sangan’s Encyclopedia of Words and Phrases Legal Maxims, Canada, 5th Edition, Volume 5, S to Z at p. w-97. 464 ON IPC Orders PO-2542 at p. 5, P-1390 at p. 5, PO-2122 at 5. Ontario’s subsection 12(2)(b) of the Ontario FOIP Act is similarly worded as Saskatchewan’s subsection 16(2)(b) of FOIP. 465 ON IPC Orders P-24 at p. 12, PO-2122 at p. 6.