Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 278 • The ability to ensure that only the particular facts relating to the case are revealed. 6. Any allegation of improper conduct by the executive branch towards a citizen.962 Common Interest Privilege Common interest privilege is a privilege that exists when records are provided among parties where several parties have a common interest in anticipated litigation;963 Disclosure of privileged information to outsiders generally constitutes as a waiver of privilege. However, if there is a sharing of information between parties where the parties have a sufficient “common interest”, then the privilege is preserved (or not waived). The following two-part test can be applied when determining if common interest privilege applies:964 1. Does the record contain information that is subject to any privilege that is available at law? The information at issue must be inherently privileged in that it must have arisen in such a way that it meets the definition of solicitor-client privilege under subsection 22(a) of FOIP. 2. Do the parties who share the information have a “common interest”, but not necessarily an identical interest, in the information? In Buttes Gas and Oil Co. v. Hammer (No. 3), [1980 3 All E.R. 475 (C.A), Lord Denning provided that “common interest” privilege is a type of litigation privilege. Lord Denning said: There is a privilege which may be called a “common interest” privilege. That is a privilege in aid of anticipated litigation in which several persons have a common interest. It often happens in litigation that a plaintiff or defendant has other persons standing alongside him – who have the self-same interest as he – and who have consulted lawyers on the self-same points as he – but these others have not been made parties to the action. Maybe for economy or for simplicity or what you will. All exchange counsel's opinions. All 962 Leeds v. Alberta (Minister of the Environment), 1990 CanLII 5933 (AB QB) at [25]. See also SK OIPC Review Report 171-2019 at [103] and AB IPC Order 96-020 at [79]. 963 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 199. 964 SK OIPC Review Report 298-2019 at [53]. This test was adapted from AB IPC’s two-part test in Order 97-009 and ON IPC’s Order PO-3154.
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