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. 155 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”… . In a review with the IPC, the government institution must demonstrate that the agenda or minutes are those of one of the bodies noted in the provision. The exemption can only be applied to the records of the bodies listed in the provision. A government institution cannot rely on subsection 17(1)(f) of FOIP for a record that fits within the enumerated exclusions listed at subsection 17(2). 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 157-2016, the Commissioner considered subsection 17(1)(f) of FOIP. An applicant made an access to information request to the Global Transportation Hub Authority (GTH) for all correspondence between the GTH and any other ministry related to Brightenview International Development Incorporation. The GTH responded to the applicant advising that all responsive records were withheld citing several provisions under FOIP including subsection 17(1)(f) of FOIP. The GTH applied subsection 17(1)(f) of FOIP to minutes of the GTH’s Audit and Finance Committee. Upon review, the Commissioner found that the record qualified as minutes. The Commissioner also found that the minutes were minutes of a committee meeting of the GTH. However, as the FOIP Regulations did not have any prescribed committees, the Audit and Finance Committee of the GTH did not qualify for subsection 17(1)(f)(ii) of FOIP. In fact, there are no committees for purposes of subsection 17(1)(f)(ii) of FOIP prescribed in the FOIP Regulations. As such, the Commissioner found that subsection 17(1)(f) of FOIP did not apply to the minutes. In Review Report 025-2017, the Commissioner considered subsection 17(1)(f) of FOIP. An applicant submitted an access to information request to the Saskatchewan Power Corporation (SaskPower) for all reports or documentation analyzing and/or evaluating the possibility of purchasing land in the Global Transportation Hub between January 1, 2012 and