Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 275 pursuant to subsection 22(a) of FOIP. If it does so, it must still meet the “burden of proof” in demonstrating that subsection 22(a) of FOIP applies as required by section 60 of FOIP (see the Guide to FOIP, Chapter 2: “Administration of FOIP” for more on the burden of proof). Prima facie means at first sight; on first appearance but subject to further evidence or information. A ‘prima facie case’ is where a party produces enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor..953 A prima facie case can be made to the Commissioner without providing a copy of the records but only for records that may be subject to solicitor-client and litigation privilege. All other records must be provided in the course of a review. If making a prima facie case, the Commissioner will need the following from the government institution if claiming solicitor-client privilege for subsection 22(a) of FOIP: • An affidavit of documents which includes an Index of Records (Schedule) that includes: o Sufficient detail to identify the document and allow the Commissioner to determine whether a prima facie case for the claim of solicitor-client privilege has been made. It should include: The date of the record. Whether the record is a letter, memo, fax, and so forth. The author of the record. The recipient of the record. Whether the record is an original or copy.954 For more on what the Commissioner requires, see Part 9: Solicitor-Client or Litigation Privilege in the Rules of Procedure. If the government institution provides less than what is needed for a prima facie case to be met, the Commissioner may request additional details. If the government institution fails to provide the additional details, the Commissioner may do one or both of the following, pursuant to subsection 54(2) of FOIP: 953 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 1441. 954 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [75], [76] and [82].
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