Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 124 Subsection 16(2)(b) Cabinet documents 16(2) Subject to section 30, a head shall not refuse to give access pursuant to subsection (1) to a record where: … (b) consent to access is given by: (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(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.463 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.464 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.465 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: 463 Office of the Information Commissioner of Canada, The Access to Information Act and Cabinet confidence: A Discussion of New Approaches, 1996 at p. 11. 464 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. 465 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.
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