Guide to FOIP-Chapter 4

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 19 The expectation of confidentiality must be reasonable and must have an objective basis.37 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)). Once it has been established that the executive branch of government obtained a record from another government in confidence, the continued confidentiality of that record must be presumed, unless the other government has consented to disclosure or has made the information public.38 In other words, there are no time limits on the confidentiality. Just because a record might be old, it does not lose its confidential nature. 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.39 Factors to consider when determining whether information was obtained 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 government institution or the party that provided the information.40 • Was the information treated consistently in a manner that indicated a concern for its protection by the government institution and the party that provided the information from the point it was obtained until the present time.41 • Is the information available from sources to which the public has access.42 • Does the government institution have any internal policies or procedures that speak to how records such as the one in question are to be handled confidentially. • Was there a mutual understanding that the information would be held in confidence. Mutual understanding means that the government institution and the party that provided the information both had the same understanding regarding the 37 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. 38 Saskatchewan (Ministry of Health) v West, 2022 SKCA 18 at [25]. 39 SK OIPC Review Reports F-2006-002 at [57], F-2009-001 at [62], F-2012-001/LA-2012-001 at [29], LA2013-002 at [49], F-2014-002 at [47]. 40 BC IPC Orders 331-1999 at [8], F13-01 at [23]; Office of the Nova Scotia Information and Privacy Commissioner (NS IPC) Review Reports 17-03 at [34], 16-09 at [44]; Office of the Prince Edward Island Information and Privacy Commissioner (PEI IPC) Order FI-16-006 at [19]. 41 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 42 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10.