Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 247 considered by the Supreme Court of Canada in Ontario (Community Safety and Correctional Service) v. Ontario (Information and Privacy Commissioner), (2014): 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 nature of the issue and “inherent probabilities or improbabilities or the seriousness of the allegations or consequences”… IPC Findings The Commissioner considered subsection 19(3) of FOIP in Review Report 043-2015. An applicant made an access to information request to the Ministry of Environment for the “2012 and 2013 Water and Air Quality Compliance Reports”. The Ministry withheld portions of the two reports citing subsections 19(1)(b) and (c) of FOIP (third party information). Upon review, the Commissioner found that subsection 19(1)(c) of FOIP applied to portions of the reports. Furthermore, the Commissioner found that the public interest resulting from disclosure of the information would outweigh in importance, any financial loss or prejudice to the competitive position of the third party. As such, the Commissioner found that subsection 19(1)(3) of FOIP applied. The Commissioner recommended release. Section 20: Testing Procedures, Tests and Audits Testing procedures, tests and audits 20 A head may refuse to give access to a record that contains information relating to: (a) testing or auditing procedures or techniques; or (b) details of specific tests to be given or audits to be conducted; if disclosure could reasonably be expected to prejudice the use or results of particular tests or audits. Section 20 of FOIP is a discretionary, harm-based provision. The provision is intended to protect records that contain information relating to:
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