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. 181 Once a contract is executed, negotiation is concluded. The exemption would generally not apply unless, for instance, the same strategy will be used again, and it has not been publicly disclosed.653 The exemption covers negotiations either conducted directly by employees or officers of a government institution or Government of Saskatchewan or conducted by a third party acting as an agent of the government institution. It does not cover information relating to negotiations to which a government institution or the Government of Saskatchewan is not a party.654 When under review by the IPC, government institutions will be invited to provide the IPC with its submission (i.e., arguments) as to why the exemption applies. Government institutions should detail what negotiations are occurring and what parties are involved. 2. Could release of the record reasonably be expected to interfere with the contractual or other negotiations? Interfere means to hinder or hamper.655 There must be a reasonable expectation that disclosure could interfere with contractual or other negotiations. The Supreme Court of Canada set out the standard of proof for harmsbased provisions as follows: 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 653 British Columbia Government Services, FOIPPA Policy and Procedures Manual at Accessed July 19, 2019. Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 107. 654 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.11.2. Available at Accessed July 19, 2019. 655 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 152.