Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 168 4. The possessor must have an interest (e.g., an economic interest) worthy of legal protection.611 The information must meet all of the above criteria to be considered a trade secret. For the fourth criterion, the government institution must own the trade secret or be able to prove a claim of legal right to the information (i.e., license agreement). Normally, this will mean that the trade-secret information has been created by employees of the government institution as part of their jobs, or by a contractor as part of a contract with the government institution.612 2. Could release reasonably be expected to disclose the trade secret? Trade secrets can be revealed in two ways: 1. The information itself consists of trade secrets. 2. The information, if disclosed, would permit the drawing of accurate inferences as to the nature of the actual trade secrets.613 Section 18 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 some of the exemptions contained in section 18 are not harms-based exemptions, 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 611 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [109] to [112]. Definition relied on by Justice Zarzeczny in Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKQB 362 (CanLII) at [32]. 612 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 190. Similar requirement in British Columbia Government Services, FOIPPA Policy and Procedures Manual. 613 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.
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