Guide to FOIP-Chapter 4

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 27 The following three-part test can be applied: 1. Was the information obtained from the government of a foreign jurisdiction or its institutions? A foreign jurisdiction refers to a government or its institutions of any foreign nation or state outside of Canada.74 Obtained means to acquire in any way; to get possession of; to procure; or to get a hold of by effort.75 A government institution could obtain information either intentionally or unintentionally. It can also include information that was received indirectly provided its original source was the government of a foreign jurisdiction or its institutions. However, to obtain information suggests that the government institution did not create it. Regardless, the provision is not so much driven by the source of the record to which access is sought as it is by the confidential nature and source of the information it contains. As such, authorship (or who created the record) is irrelevant.76 Section 13 of FOIP uses the term “information contained in a record” rather than “a record” like other exemptions. Therefore, the exemption can include information within a record that was authored by the government institution provided the information at issue was obtained from the government of a foreign jurisdiction. Information means facts or knowledge provided or learned as a result of research or study.77 IPC Findings In Review Report 051-2017, the Commissioner found that the North American Strategy for Competitiveness (NASCO) did not qualify for the first part of the test. While the members of NASCO may have included representatives of governments, NASCO itself was not an entity that acted on behalf of, or under the authority of any government of a foreign jurisdiction or its institutions. As such, the Commissioner found subsection 13(1)(c) of FOIP did not apply. 74 Adapted from Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 162. 75 Originated from Campbell Black, Henry, 1990. Black’s Law Dictionary, 6th Edition. St. Paul, Minn.: West Group. Adopted by AB IPC in Order 2000-021 at [26]. Adopted in SK OIPC Review Report F-2006-001 at [58] and [59]. Also, found in SK OIPC Review Report F-2006-002 at [39]. 76 Saskatchewan (Ministry of Health) v West, 2022 SKCA 18 at [46] and [47]. 77 Pearsall, Judy, Concise Oxford Dictionary, 10th Ed. at p. 727, (Oxford University Press); Cited in SK OIPC Review Report F-2006-002 at [45].