Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 207 An agreement where the government institution contributed significantly to its terms would not qualify under this exemption because it is the result of negotiation between the parties and was also largely based on the criteria set out by the government institution in its request for proposals.737 There are two exceptions to the general rule of “mutually generated” information in contracts.738 If one of these exceptions apply, the information in a contract could be found to have been supplied by the third party: i) Inferred disclosure – where disclosure of the information in a contract would permit accurate inferences to be made with respect to underlying non-negotiated confidential information supplied by the third party to the public body;739 and ii) Immutability – information the third party provided that is immutable or not open or susceptible to change and was incorporated into the contract without change, such as the operating philosophy of a business, or a sample of its products.740 3. Was the information supplied in confidence implicitly or explicitly? Supplied means provided or furnished.741 In confidence usually describes a situation of mutual trust in which private matters are relayed or reported. Information obtained in confidence means that the supplier of the information has stipulated how the information can be disseminated.742 In order for confidence to be found, there must be an implicit or explicit agreement or understanding of and Government Services), [1994] F.C.J. No. 2035. Similar position taken by other IPC offices including BC, AB, NFLD and Labrador and PEI. 737 SK OIPC Review Reports F-2005-003 at [17] to [19] and LA-2011-001 at [97]. 738 Base case was BC IPC Order 01-20 at [86]. This Order was later discussed in Canadian Pacific Railway v. British Columbia (Information and Privacy Commissioner) [2002] B.C.J. No. 848 at [72] to [79]. See also ON IPC Orders MO-1706 at p. 12, PO-2371 at pp. 6 to 9, PO-2528 at p. 12. Included for the first time in SK IPC Review Report 084-2015 at [22]. 739 An example of “inferred disclosure” can be found at [25] of Aventis Pasteur Ltd. v. Canada (Attorney General), 2004 FC 1371 (CanLII). See also BC IPC Order 01-20 at [86]. 740 The Ontario Superior Court of Justice, in Canadian Medical Protective Association v. Loukidelis, 2008 CanLII 45005 (ON SCDC) and [55], considered “immutability” as a factor in its determination that the information was not “supplied” by the third party. 741 British Columbia Government Services, FOIPPA Policy Definitions at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/policy-definitions#supplied. Accessed August 21, 2019. 742 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 104, SK OIPC Review Reports F-2006-002 at [51], H-2008-002 at [73], ON IPC Order MO-1896 at p. 8.
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