Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 151 Subsection 17(1)(e) Advice from officials 17(1) Subject to subsection (2), a head may refuse to give access to a record that could reasonably be expected to disclose: … (e) contents of draft legislation or subordinate legislation; Subsection 17(1)(e) of FOIP is a discretionary class-based exemption. It permits refusal of access in situations where release of a record could reasonably be expected to disclose the contents of draft legislation or subordinate legislation (e.g., regulations). The following test can be applied: Could release of the record disclose the contents of draft legislation or subordinate legislation? The contents of draft legislation or subordinate legislation can be revealed in two ways: 1. The information itself consists of draft legislation or subordinate legislation. 2. The information, if disclosed, would permit the drawing of accurate inferences as to the nature of the actual drafts.563 The provision can apply to records that are themselves the draft versions of legislation or subordinate legislation. It can also apply to a record that is not the actual draft but discloses the content of draft legislation or subordinate legislation.564 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 563 Adapted from 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. 564 SK OIPC Review Report 086-2018 at [78]. Relied on AB IPC Orders F2004-026 and F2008-028.
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