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. 140 If releasing this information reveals the substance of the consultations or deliberations, the government institution can withhold this information.523 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 consultations and/or deliberations.524 Consultations and deliberations can be revealed in two ways: 1. The information itself consists of consultations or deliberations. 2. The information, if disclosed, would permit the drawing of accurate inferences as to the nature of the actual consultations or deliberations.525 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 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 nature of the issue and “inherent probabilities or improbabilities or the seriousness of the allegations or consequences”… 523 AB IPC Order F2004-026 at [65]. 524 “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]. 525 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.