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. 158 2. Could disclosure reasonably be expected to result in disclosure of a pending policy or budgetary decision? 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”… Pending means awaiting decision or settlement; about to happen.583 A policy is a standard course of action that has been officially established by government.584 Budgetary means of or pertaining to a budget. A budget is a periodic, (especially annual) estimate of revenue and expenditure.585 Decision means the action of coming to a determination or resolution with regard to any point or course of action; resolution or conclusion arrived at.586 The government institution must tie the information in the record to the pending policy or budgetary decision that could be disclosed. 583 Pearsall, Judy, Concise Oxford Dictionary, 10th Ed., (Oxford University Press) at p. 1055. 584 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 1401. 585 Shorter Oxford English Dictionary on Historical Principles, 6th Edition, Volume 1. A-M, (Oxford University Press) at p. 304. 586 Shorter Oxford English Dictionary on Historical Principles, 6th Edition, Volume 1. A-M, (Oxford University Press) at p. 619.