Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 250 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”…848 The government institution does not have to prove that a harm is probable but needs to show that there is a “reasonable expectation of harm” if any of the information were to be released. In British Columbia (Minister of Citizens’ Service) v. British Columbia (Information and Privacy Commissioner), (2012), Bracken J. confirmed it is the release of the information itself that must give rise to a reasonable expectation of harm. Government institutions should not assume that the harm is self-evident. The harm must be described in a precise and specific way in order to support the application of the provision. The expectation of harm must be reasonable, but it need not be a certainty. The evidence of harm must: • Show how the disclosure of the information would cause harm; • Indicate the extent of harm that would result; and • Provide facts to support the assertions made.849 Prejudice in this context refers to detriment to the use or to the results of tests or audits.850 The provision may apply where there is an intention to use the testing or auditing procedure in the future, and disclosure would result in unreliable results being obtained and the test or the audit having to be abandoned as a result. Test questions that are regularly used – for example, in making staffing decisions - may qualify.851 848 Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2014] 1 SCR 674, 2014 SCC 31 (CanLII) at [54]. 849 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.14.4. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_14. Accessed August 29, 2019. 850 Adapted from Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 149. 851 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 195.
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