Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 226 (c) information, the disclosure of which could reasonably be expected to: … (iii) interfere with the contractual or other negotiations of; a third party; … (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)(iii) of FOIP is a mandatory, harm-based exemption. It permits refusal of access in situations where disclosure of information could reasonably be expected to interfere with the contractual or other negotiations of a third party. The following two-part test can be applied: 1. Are there contractual or other negotiations occurring involving a third party? A negotiation is a consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter. It can also be defined as dealings conducted between two or more parties for the purpose of reaching an understanding.781 It connotes a more robust relationship than “consultation”. It signifies a measure of bargaining power and a process of back-and-forth, give-and-take discussion.782 781 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at pp. 1248 and 1249. Relied on in SK OIPC Review Report 112-2018 at [37]. 782 Gordon v. Canada (Attorney General), 2016 ONCA 625 (CanLII) at [107]. Relied on in SK OIPC Review Report 112-2018 at [37].
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