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. 144 For the purpose of means intention; the immediate or initial purpose of something.538 A negotiation is a consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter. It can also be defined as dealings conducted between two or more parties for the purpose of reaching an understanding.539 It connotes a more robust relationship than “consultation”. It signifies a measure of bargaining power and a process of back-and-forth, give-and-take discussion.540 The contractual or other negotiations can be concluded,541 ongoing or future negotiations.542 There must be a clear indication that the information was “developed for the purpose of” negotiations. There must be a clear indication that the negotiations were in mind when the record was developed.543 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 subsection 17(1)(c) 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 538 Gardner, J., and Gardner K. (2016) Sangan’s Encyclopedia of Words and Phrases Legal Maxims, Canada, 5th Edition, Volume 2, C to H, at p. F-133. 539 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at pp. 1248 and 1249. Relied on in SK OIPC Review Report 112-2018 at [37]. 540 Gordon v. Canada (Attorney General), 2016 ONCA 625 (CanLII) at [107]. Relied on in SK OIPC Review Report 112-2018 at [37]. 541 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.18.5. Available at Accessed July 10, 2019. Also consistent with Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 181. 542 SK OIPC Review Report LA-2010-001 at [51]. 543 NU IPC Review Report 20-170 at p. 6.