Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 276 • Summon and enforce the appearance of any person, including employees of a government institution, before the Commissioner and compel them to give oral and/or written evidence under oath or affirmation and produce any documents required. • Seek an order from the Court of King’s Bench for production of the records from the government institution. Case-by-Case Privilege Case-by-case privilege is a privilege found by a decision-maker to exist for information in a particular case.955 In each case, the decision-maker must determine whether the public interest favours disclosure or non-disclosure of the record.956 In order to determine if case-by-case privilege applies, the government institution must determine if the records at issue are “private records” or “Crown records”. If the records at issue are “private records, one must apply the Wigmore test to determine if the case-by-case privilege applies. If the records at issue are “Crown records”, then one must apply the criteria for public interest immunity.957 Private records are third party records not in the hands of the Crown.958 Crown records are records containing information relating to government activities or operations, and decisions at the highest level of government.959 When determining whether records are private records or Crown records, what matters is whose information it is, not necessarily who is in possession of the records.960 Wigmore test is a four-part test set out by Wigmore in Evidence in Trials at Common Law, Vol. 8 (McNaughton rev.) (Boston: Little, Brown & Co, 1961), and adopted by the Supreme Court of Canada in Slavutych v. Baker et al., 1975 CanLII 5 (SCC), [1976] 1 SCR 254. If the records are private records, the Wigmore test should be applied. The four fundamental 955 AB IPC Order 96-020 at [60]. 956 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 200. 957 SK OIPC Review Report 171-2019 at [102] to [109]. 958 AB IPC Order 96-020 at [74]. Cited in SK OIPC Review Report 171-2019 at [106]. 959 AB IPC Order 96-020 at [77]. Cited in SK OIPC Review Report 171-2019 at [106]. 960 AB IPC Order 96-020 at [83]. See also SK OIPC Review Report 171-2019 at [104].
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