Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 149 In order for the third part of the test to be met, the plan(s) cannot yet have been implemented. However, it is not necessary for the implementation activities to have been completed.561 Yet means at some time in the future, in the remaining time available, before all is over.562 The plans can relate to a government institution and not just the one relying on the exemption. 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”… A government institution cannot rely on subsection 17(1)(d) 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. 561 British Columbia Government Services, FOIPPA Policy and Procedures Manual at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/disclosure-harmful-economic-interests. Accessed July 17, 2019. 562 Shorter Oxford English Dictionary on Historical Principles, 6th Edition, Volume 2. N-Z, (Oxford University Press) at p. 3693. Definition first used in SK OIPC Review Report 166-2018 at [29].
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