Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 134 review documents. Processes are established and simply followed and generally contain no advice or recommendations.503 If releasing this information reveals the substance of the advice, recommendations, proposals, analyses and/or policy options, the government institution can withhold this information.504 Where a review by the IPC occurs and this is the exception, the government institution should demonstrate how and why release of this type of information would reveal the substance of the advice, recommendations, proposals, analyses and/or policy options.505 Advice, proposals, recommendations, analyses or policy options can be revealed in two ways: 1. The information itself consists of advice, proposals, recommendations, analyses or policy options. 2. The information, if disclosed, would permit the drawing of accurate inferences as to the nature of the actual advice, proposals, recommendations, analyses or policy options.506 Subsection 17(1) of FOIP includes the requirement that access can be refused where it “could reasonably be expected to disclose” the protected information listed in the exemptions. The meaning of the phrase “could reasonably be expected to” in terms of harm-based exemptions was considered by the Supreme Court of Canada in Ontario (Community Safety and Correctional Service) v. Ontario (Information and Privacy Commissioner), (2014). Although section 17 of FOIP is not a harms-based provision, the threshold provided by the Court for “could reasonably be expected to” is instructive: 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 503 Saskatchewan (Ministry of Health) v West, 2022 SKCA 18 at [56]. See also SK OIPC Review Report 244-2018 at [40] and NS IPC Review Report 18-02 at [21]. 504 AB IPC Order F2004-026 at [65]. 505 “There may be cases where some of the foregoing items reveal the content of the advice. However, that must be demonstrated for every case for which it is claimed”. See AB IPC Order F2004-026 at [71]. 506 ON IPC Orders PO-3470-R at [28], PO-2084 at p. 8 and PO-2028 at pp. 10 and 11, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner), [2004] O.J. No. 163 (Div. Ct.), aff’d [2005] O.J. No. 4048 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 564. See also Order PO-1993 at p. 12, upheld on judicial review in Ontario (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner), [2005] O.J. No. 4047 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 563.
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