Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 227 Prospective or future negotiations could be included within this exemption, if they are foreseeable.783 It may be applied even though negotiations have not yet started at the time of the access to information request, including when there has not been any direct contact with the other party or their agent. However, a vague possibility of future negotiations is not sufficient. There must be a reasonable fact-based expectation that the future negotiations will take place.784 Once a contract is executed, negotiation is concluded. The exemption would generally not apply unless, for instance, the same strategy will be used again, and it has not been publicly disclosed.785 2. Could release of the record reasonably be expected to interfere with the contractual or other negotiations of a third party? Interfere means to hinder or hamper.786 “Could reasonably be expected to” means there must be a reasonable expectation that disclosure could interfere with the contractual or other negotiations of a third party. The Supreme Court of Canada set out the standard of proof for harms-based provisions as follows: This Court in Merck Frosst adopted the “reasonable expectation of probable harm” formulation and it should be used wherever the “could reasonably be expected to” language is used in access to information statutes. As the Court in Merck Frosst emphasized, the statute tries to mark out a middle ground between that which is probable and that which is merely possible. An institution must provide evidence “well beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground: paras. 197 and 199. This inquiry of course is contextual and how much evidence and the quality of evidence needed to meet this standard will ultimately depend on the 783 SK OIPC Review Report 019-2014 at [27]. Equivalent provision in LA FOIP was being considered (subsection 17(1)(d)). Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 107. 784 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.11.2. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_11. Accessed July 19, 2019. 785 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-economic-interests. Accessed July 19, 2019. Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 107. 786 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 152.
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