Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 141 There is often confusion among government institutions as to when to apply subsection 17(1)(a) of FOIP versus subsection 17(1)(b) of FOIP. Subsection 17(1)(a) of FOIP is intended to protect communications developed for a government institution by an advisor, while subsection 17(1)(b) of FOIP protects communications involving decision-makers. This is supported by the use of the word “deliberation”: only a person charged with making a decision can be said to deliberate that decision. Moreover, “consultation” typically refers to the act of seeking advice regarding an action one is considering taking, but not to giving advice in relation to it. Information that is the subject of subsection 17(1)(a) of FOIP may be voluntarily or spontaneously provided to a decision-maker for the decision-makers’ use because it is the responsibility of an employee to provide information of this kind; however, such information cannot be described as a “consultation” or a “deliberation”. Put simply, subsection 17(1)(a) of FOIP is concerned with the situation where advice is given, subsection 17(1)(b) of FOIP is concerned with the situation where advice is sought or considered.526 A government institution cannot rely on subsection 17(1)(b) of FOIP for a record that fits within the enumerated exclusions listed at subsection 17(2) of FOIP. Before applying subsection 17(1) of FOIP, government institutions should ensure that subsection 17(2) of FOIP does not apply to any of the records. IPC Findings In Review Report 042-2015, the Commissioner considered subsection 17(1)(b) of FOIP. An applicant had requested analysis, briefing notes, publications or correspondence related to the impact of provincial finances of changing the liquor retailing system conducted since January 1, 2012. The applicant made the request to the Ministry of Finance who transferred it to Saskatchewan Liquor and Gaming Authority (SLGA). SLGA responded to the applicant indicating that all responsive records were being withheld pursuant to subsections 17(1)(a) and (b) of FOIP. For subsection 17(1)(b) of FOIP, the records remaining at issue were Excel Workbooks containing only raw numerical data. Upon review, the Commissioner found that the raw numerical data did not qualify as consultations or deliberations. As such, the Commissioner found subsection 17(1)(b) of FOIP would not apply to the Excel Workbooks. 526 SK OIPC Review Report 119-2022 at [23] to [24].
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