Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 128 Subsection 17(1)(a) Advice from officials 17(1) Subject to subsection (2), a head may refuse to give access to a record that could reasonably be expected to disclose: (a) advice, proposals, recommendations, analyses or policy options developed by or for a government institution or a member of the Executive Council; Subsection 17(1)(a) of FOIP is a discretionary class-based exemption. It permits refusal of access in situations where release of a record could reasonably be expected to disclose advice, proposals, recommendations, analyses or policy options developed by or for a government institution or a member of the Executive Council. The following two-part test can be applied:469 1. Does the information qualify as advice, proposals, recommendations, analyses or policy options? Advice is guidance offered by one person to another.470 It can include the analysis of a situation or issue that may require action and the presentation of options for future action, but not the presentation of facts.471 Advice encompasses material that permits the drawing of inferences with respect to a suggested course of action, but which does not itself make a specific recommendation. It can be an implied recommendation.472 The “pros and cons” of various options also qualify as advice.473 It should not be given a restricted meaning. Rather, it should be interpreted to include an opinion that involves exercising judgement and skill in 469 Between June and October 2019, the Commissioner modified the original three-part test and the definitions associated with subsection 17(1)(a) in consideration of two court decisions, Britto v University of Saskatchewan, 2018 SKQB 92 and Hande v University of Saskatchewan, QBG 1222 of 2018 May 21, 2019. The first report where the Commissioner brought forward both the new two-part test and the modified definitions was SK OIPC Review Report 244-2018. 470 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 67. 471 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at pp. 166 and 179. The SK OIPC relied on this definition for the first time in Review Report LA-2010-001 at [28]. Also relied on in SK OIPC Review Report F-2014-001 at [282]. 472 John Doe v. Ontario (Finance), [2014] 2 SCR 3, 2014 SCC 36 (CanLII) at [26]. Relied on by Justice Danyliuk in Britto v University of Saskatchewan, 2018 SKQB 92 at [77]. 473 John Doe v. Ontario (Finance), [2014] 2 SCR 3, 2014 SCC 36 (CanLII) at [47]. Relied on in ON IPC Order PO-3470-R at [21].
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