Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 221 (2) A head may give access to a record that contains information described in subsection (1) with the written consent of the third party to whom the information relates. (3) Subject to Part V, a head may give access to a record that contains information described in subsection (1) if: (a) disclosure of that information could reasonably be expected to be in the public interest as it relates to public health, public safety or protection of the environment; and (b) the public interest in disclosure could reasonably be expected to clearly outweigh in importance any: (i) financial loss or gain to; (ii) prejudice to the competitive position of; or (iii) interference with contractual or other negotiations of; a third party. Subclause 19(1)(c)(ii) of FOIP is a mandatory, harm-based exemption. It permits refusal of access in situations where disclosure of information could reasonably be expected to prejudice the competitive position of a third party. The following two-part test can be applied: 1. What is the prejudice to a third party’s competitive position that is being claimed? Prejudice in this context refers to detriment to the competitive position of a third party.773 Competitive position means the information must be capable of use by an existing or potential business competitor, whether that competitor currently competes for the same market share. For example: • Information that discloses the profit margin on a private company’s operations. • Marketing plans, including market research surveys, polls. • Information that reveals the internal workings of a private company.774 773 Adapted from Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 149. 774 British Columbia Government Services, FOIPPA Policy and Procedures Manual at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/disclosure-harmful-business-interests-third-party. Accessed August 28, 2019.
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