Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 194 Subsection 18(1)(h) Economic and other interests 18(1) A head may refuse to give access to a record that could reasonably be expected to disclose: … (h) information, the disclosure of which could reasonably be expected to result in an undue benefit or loss to a person. (2) A head shall not refuse, pursuant to subsection (1), to give access to a record that contains the results of product or environmental testing carried out by or for a government institution, unless the testing was conducted: (a) as a service to a person, a group of persons or an organization other than a government institution, and for a fee; or (b) as preliminary or experimental tests for the purpose of: (i) developing methods of testing; or (ii) testing products for possible purchase. Subsection 18(1)(h) of FOIP is a discretionary, harm-based exemption. It permits refusal of access in situations where release of a record could reasonably be expected to result in an undue benefit or loss to a person. The following test can be applied: Could disclosure reasonably be expected to result in an undue benefit or loss to a person? “Could reasonably be expected to” means there must be a reasonable expectation that disclosure could result in an undue benefit or loss to a person. The Supreme Court of Canada set out the standard of proof for harms-based 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
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