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. 8 Harm-based Exemptions Harm-based exemptions, on the other hand, are based on a determination by the government institution that it is reasonable to expect that some injury, harm, or prejudice will occur if the information is released.13 Examples include subsection 19(1)(c) of FOIP which contemplates three different types of harm to a third party – financial loss or gain, prejudice to competitive position or interference with contractual or other negotiations. Harm-based exemptions in FOIP include: • Parts of section 15; • Parts of section 18; • Parts of section 19; • Section 20; and • Section 21. For harm-based exemptions to apply there must be objective grounds for believing that disclosing the information could result in the harm alleged. The government institution (or third party) does not have to prove that the harm is probable but needs to show that there is a likelihood the harm will occur if any of the information or records were released. In British Columbia (Minister of Citizens’ Service) v. British Columbia (Information and Privacy Commissioner), (2012), Justice Bracken confirmed that it is the release of the information itself that must give rise to a reasonable expectation of harm. The Supreme Court of Canada in Ontario (Community Safety and Correctional Service) v. Ontario (Information and Privacy Commissioner), (2014) set out the standard of proof for harms-based provisions as follows: This Court in Merck Frosst adopted the “reasonable expectation of probable harm” formulation and it should be used wherever the “could reasonably be expected to” language is used in access to information statutes. As the Court in Merck Frosst emphasized, the statute tries to mark out a middle ground between that which is probable and that which is merely possible. An institution must provide evidence “well beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground: paras. 197 and 199. This inquiry of course is contextual and how much evidence and the quality of evidence needed to meet this standard will ultimately depend on the 13 Government of Canada, Department of Justice, Resource, Strengthening the Access to Information Act,, accessed June 7, 2019.