Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 187 conducted between two or more parties for the purpose of reaching an understanding.679 It connotes a more robust relationship than “consultation”. It signifies a measure of bargaining power and a process of back-and-forth, give-and-take discussion.680 The contractual or other negotiations can be concluded,681 ongoing or future negotiations.682 Subsection 18(1) 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 section 18(1)(e) is not a harms-based provision, 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)(e) 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. 679 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at pp. 1248 and 1249. Relied on in SK OIPC Review Report 112-2018 at [37]. 680 Gordon v. Canada (Attorney General), 2016 ONCA 625 (CanLII) at [107]. Relied on in SK OIPC Review Report 112-2018 at [37]. 681 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.18.5. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_18. Accessed July 10, 2019. Also consistent with Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 181. 682 SK OIPC Review Report LA-2010-001 at [51].
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