Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 200 Although government institutions need to be open and accountable, they also need to conduct business and enter into business relationships; in doing so, they must be able to assure their private sector partners that their trade secrets and commercial and financial secrets will not be readily disclosed to competitors and the public.714 The leading case authority in terms of third-party information is Merck Frosst Canada Ltd. v. Canada (Health), (2012). At paragraph [23], the court recognized that a balance must be struck between the private interests of third parties and the public interest in the disclosure of information. The court commented: [23] Nonetheless, when the information at stake is third party, confidential commercial and related information, the important goal of broad disclosure must be balanced with the legitimate private interests of third parties and the public interest in promoting innovation and development. The Act strikes this balance between the demands of openness and commercial confidentiality in two main ways. First, it affords substantive protection of the information by specifying that certain categories of third party information are exempt from disclosure. Second, it provides procedural protection. The third party whose information is being sought has the opportunity, before disclosure, to persuade the institution that exemptions to disclosure apply…715 Third parties doing business with public institutions must understand that certain information detailing the expenditure of public funds might be disclosed.716 Third parties should be aware that the right of access to information under government control is available to every member of the public and cannot be restricted by considerations of motive or occupation. The only way motivation could be relevant is in order to establish a reasonable expectation of harm to third parties [subsection 19(1)(c) of FOIP].717 714 NWT IPC Review Report 04-043 at p. 4. 715 Quoted by Justice Zarzeczny in Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKQB 362 (CanLII) at [28]. 716 ON IPC Order PO-3845 at [62]. 717 Intercontinental Packers Ltd. v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 142 (T.D.), affirmed (1988), 87 N.R. 99 (Fed. C.A.) at [145].
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