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. 174 some of the exemptions contained in section 18 of FOIP 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 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)(b) 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)(b) 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)(b) of FOIP. The records withheld included an original Carbon Dioxide Purchase and Sale Agreement between SaskPower and Cenovus and two amending agreements. SaskPower applied subsection 18(1)(b) of FOIP to all of the records asserting it was financial, commercial, and scientific information. Upon review, the Commissioner agreed that the information was commercial information. Furthermore, the Commissioner found that SaskPower had a right to use the information. However, the Commissioner found the third part of the test was not met. The Commissioner was not persuaded that the contract itself would have any monetary value for SaskPower. In coming to this finding, the Commissioner noted that SaskPower had only demonstrated that other organizations would find monetary value in the contract. As all three parts of the test were not met, the Commissioner found that subsection 18(1)(b) of FOIP did not apply to the record.