Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 274 exercises this authority cautiously and with restraint given the clear direction by the courts that a reviewing body’s decision to examine privileged documents must never be made lightly or as a matter of course.948 Therefore, given the importance of solicitor-client privilege and litigation privilege, and to minimally infringe on these privileges, the Commissioner will only order production of records being withheld under solicitor-client or litigation privilege pursuant to subsection 22(a) of FOIP when it is absolutely necessary to decide the issues in dispute. Absolutely necessary is as restrictive a test as may be formulated short of an absolute prohibition in every case.949 As to when it would be appropriate to order production of records withheld under the solicitor-client or litigation privilege provision at subsection 22(a) of FOIP, the Commissioner will exercise discretion in the following circumstances: • Where there is some evidence that the party claiming privilege has done so ‘falsely” or inappropriately.950 • When the party claiming privilege fails to respond to a reasonable request by the Commissioner for additional information.951 A naked “trust me” that the records in dispute are subject to solicitor-client privilege or litigation privilege is not sufficient from the government institution when making the case that subsection 22(a) of FOIP applies.952 In a review, the Commissioner requests copies of records in order to conduct the review and determine whether exemptions have been appropriately applied. This includes requesting records which a government institution may have claimed solicitor-client privilege or litigation privilege over pursuant to subsection 22(a) of FOIP. The government institution may choose to make a “prima facie” case of solicitor-client or litigation privilege for those records 948 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [73], [76], and [83]. 949 Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 (CanLII), [2006] 2 SCR 32 at [20]. 950 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [53], [54] and [72]. 951 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [83]. 952 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [75].
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