Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 272 Communication of privileged information between ministries or departments is not a waiver.945 FOIP does not provide for a burden of proof when waiver is claimed. Where an applicant has asserted that solicitor-client privilege has been waived, the applicant bears the burden of proving the privilege has been waived.946 IPC Findings In Review Report F-2005-002, the Commissioner considered whether solicitor-client privilege had been waived. The Commissioner found that even where a government institution releases some documents, dissemination of some information related to a litigation does not constitute a waiver by the government institution’s privilege. As such, the Commissioner found that the Saskatchewan government had not waived its privilege. Process During a Review by IPC In the wake of The University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34, the IPC revised its procedures in relation to government institutions asserting solicitor-client privilege over responsive records. For more on the procedures see, Part 9: Solicitor-Client or Litigation Privilege in The Rules of Procedures. In addition, see the Commissioner’s blog, Solicitor-Client Privilege/Litigation Privilege. Ordering Production of Solicitor-Client Privileged Records Powers of commissioner 54(1) Notwithstanding any other Act or any privilege that is available at law, the commissioner may, in a review: (a) require to be produced and examine any record that is in the possession or under the control of a government institution; and (b) enter and inspect any premises occupied by a government institution. 945 Stevens v. Canada (Prime Minister), [1997] 2 FC 759, 1997 CanLII 4805 (FC). 946 SK OIPC Review Report F-2005-002 at [39].
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