Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 287 • Where there is some evidence that the party claiming privilege has done so ‘falsely” or inappropriately.993 • When the party claiming privilege fails to respond to a reasonable request by the Commissioner for additional information.994 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.995 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 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 .996 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 litigation privilege for subsection 22(a) of FOIP: • An affidavit of documents which includes an Index of Records (Schedule) that includes: 993 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [53], [54] and [72]. 994 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [83]. 995 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [75]. 996 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 1441.
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