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. 169 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”… A government institution cannot rely on subsection 18(1)(a) of FOIP for a record that fits within the enumerated exclusions listed at subsection 18(2) of FOIP. Before applying subsection 18(1) of FOIP, government institutions should ensure that subsection 18(2) of FOIP does not apply to any of the records. IPC Findings In Review Report 185-2016, the Commissioner considered subsection 18(1)(a) of FOIP. An applicant made an access to information request to Saskatchewan Power Corporation (SaskPower) for a copy of the CO2 supply agreement between SaskPower and Cenovus. SaskPower responded to the applicant advising that the supply agreement was being withheld in full pursuant to several exemptions including subsection 18(1)(a) of FOIP. The records included an original Carbon Dioxide Purchase and Sale Agreement between SaskPower and Cenovus and two amending agreements. SaskPower applied subsection 18(1)(a) to Schedule B of each agreement. SaskPower asserted the information contained in the schedules were trade secrets as they were the specifications of the compressed carbon dioxide (CO2) that SaskPower was selling. Upon review, the Commissioner agreed that the information was a trade secret as it qualified as a formula. Furthermore, the Commissioner was satisfied that the formula was a secret and that SaskPower demonstrated that it has acted with the intention to treat the information as secret. The Commissioner was persuaded that information in each Schedule B qualified as a trade secret. As the criteria was met in the definition of trade secret, the Commissioner found that subsection 18(1)(a) of FOIP applied to each Schedule B.