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. 167 Subsection 18(1)(a) Economic and other interests 18(1) A head may refuse to give access to a record that could reasonably be expected to disclose: (a) trade secrets; … (2) A head shall not refuse, pursuant to subsection (1), to give access to a record that contains the results of product or environmental testing carried out by or for a government institution, unless the testing was conducted: (a) as a service to a person, a group of persons or an organization other than a government institution, and for a fee; or (b) as preliminary or experimental tests for the purpose of: (i) developing methods of testing; or (ii) testing products for possible purchase. Subsection 18(1)(a) 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 trade secrets. The following two-part test can be applied: 1. Does the information constitute a trade secret? Trade Secret is defined as information, including a plan or process, tool, mechanism or compound, which possesses the following characteristics: 1. The information must be secret in an absolute or relative sense (is known only by one or a relatively small number of people). 2. The possessor of the information must demonstrate he/she has acted with the intention to treat the information as secret. 3. The information must be capable of industrial or commercial application.