Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 286 … 3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation. … What this means is that the Commissioner will not interfere with the confidentiality of communications between solicitor and client “except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation [i.e., FOIP]”. While the courts have said that solicitor-client privilege must remain as close to absolute as possible, it is not absolute. It can be limited or abrogated by statute. A statute purporting to limit or abrogate the privilege must be interpreted restrictively. The Commissioner has the power, under section 54 of FOIP, to order production of records over which solicitor-client privilege or litigation privilege is claimed.990 The Commissioner 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.991 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.992 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: 990 This has been confirmed by the Court of Appeal for Saskatchewan in University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [47]. 991 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [73], [76], and [83]. 992 Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 (CanLII), [2006] 2 SCR 32 at [20].
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