Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 208 confidentiality on the part of both the government institution and the third party providing the information.743 Implicitly means that the confidentiality is understood even though there is no actual statement of confidentiality, agreement, or other physical evidence of the understanding that the information will be kept confidential.744 Explicitly means that the request for confidentiality has been clearly expressed, distinctly stated, or made definite. There may be documentary evidence that shows that the information was supplied on the understanding that it would be kept confidential.745 In order for subsection 19(1)(b) of FOIP to apply, a government institution must show that both parties intended the information be held in confidence at the time the information was supplied.746 The expectation of confidentiality must be reasonable and must have an objective basis.747 Whether the information is confidential will depend upon its content, its purposes, and the circumstances in which it was compiled or communicated (Corporate Express Canada, Inc. v. The President and Vice Chancellor of Memorial University of Newfoundland, Gary Kachanoski, (2014)). Factors considered when determining whether a document was supplied in confidence implicitly include (not exhaustive): • What is the nature of the information. Would a reasonable person regard it as confidential. Would it ordinarily be kept confidential by the third party or the government institution.748 • Was the information treated consistently in a manner that indicated a concern for its protection by the third party and the government institution from the point at which it was supplied until the present time.749 • Is the information available from sources to which the public has access.750 743 SK OIPC Review Reports F-2006-002 at [52], LA-2013-002 at [57], ON IPC Order MO-1896 at p. 8. 744 SK OIPC Review Reports F-2006-002 at [57], F-2009-001 at [62], F-2012-001/LA-2012-001 at [29], LA-2013-002 at [49], F-2014-002 at [47]. 745 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at pp. 104 and 105. 746 SK OIPC Review Reports 158-2016 at [37] and 203-2016 at [28]. 747 SK OIPC Review Reports F-2012-001/LA-2012-001 at [32], LA-2013-002 at [49], ON IPC Orders PO2273 at p. 7 and PO-2283 at p. 10. 748 BC IPC Orders 331-1999 at [8], F13-01 at [23]; PEI IPC Order FI-16-006 at [19]; NS IPC Review Reports 16-09 at [44], 17-03 at [34]. 749 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 750 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10.
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