Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 210 • Information is not confidential where it could be obtained by observation albeit with more effort by the applicant.755 Compulsory supply means there is a compulsory legislative requirement to supply information. Where supply is compulsory, it will not ordinarily be confidential. In some cases, there may be indications in the legislation relevant to the compulsory supply that establish confidentiality The relevant legislation may even expressly state that such information is deemed to have been supplied in confidence.756 Where information is required to be provided, unless otherwise provided by statute, confidentiality cannot be built in by agreement, informally or formally.757 Example: In Review Report 043-2015, the Commissioner found that subsection 19(1)(b) of FOIP did not apply because the third party was required to provide the information in question to the Ministry of Environment pursuant to The Environmental Management and Protection Act, 2002, The Water Regulations and The Clean Air Act. As such, this constituted compulsory supply. In addition, these statutes did not have any confidentiality provisions related to the types of information in question. In the decision Merck Frosst Canada Ltd. v. Canada (Health), (2012), the Supreme Court of Canada established that information is not confidential if it is in the public domain, including being publicly available through another source. To be confidential, the information must not be available from sources otherwise accessible by the public or obtainable by observation or independent study by a member of the public acting on his or her own. Information that has been published is not confidential. Furthermore, information, which merely reveals the existence of publicly available information, cannot generally be confidential.758 Contractors setting out to win government contracts through a confidential bidding process should not expect that the monetary terms will remain confidential if the bid succeeds. The public’s right to know how government spends public funds as a means of holding 755 Air Atonabee Ltd. v. Minister of Transport, (1989), 27 C.P.R. (3d) 180 (F.C.T.D.) at p.11. Stenotran Services v. Canada (Minister of Public Works and Government Services), 2000 CanLII 15464 (FC) at [9] citing Air Atonabee. It is important to note that subsection 20(1)(b) of the federal ATIA places the focus on the confidential nature of the information itself. SK’s subsection 19(1)(b) of FOIP places the focus on the confidential nature of the supply. However, Air Atonabee may still be instructive with interpreting SK’s subsection 19(1)(b) of FOIP. 756 Chesal v. Nova Scotia (Attorney General) et al., 2003 NSCA 124 (CanLII) at [72] and [73] and Stevens v. Canada (Prime Minister), [1997] 2 FC 759, 1997 CanLII 4805 (FC) at p. 1. Also, see NS IPC Review Report 17-03 at [98] and SK OIPC Review Reports F-2006-001 at [76] to [78]. 757 SK OIPC Review Report F-2006-001 at [78]. 758 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [146].
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