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. 28 2. Was the information obtained implicitly or explicitly in confidence? In confidence usually describes a situation of mutual trust in which private matters are relayed or reported. Information obtained in confidence means that the provider of the information has stipulated how the information can be disseminated.78 In order for confidence to be found, there must be an implicit or explicit agreement or understanding of confidentiality on the part of both the government institution and the party providing the information.79 The expectation of confidentiality must be reasonable and must have an objective basis.80 Whether the information is confidential will depend upon its content, its purposes, and the circumstances in which it was compiled or communicated. (Corporate Express Canada, Inc. v. The President and Vice Chancellor of Memorial University of Newfoundland, Gary Kachanoski, (2014)) Once it has been established that the executive branch of government obtained a record from another government in confidence, the continued confidentiality of that record must be presumed, unless the other government has consented to disclosure or has made the information public.81 In other words, there are no time limits on the confidentiality. Just because a record might be old, it does not lose its confidential nature. Implicitly means that the confidentiality is understood even though there is no actual statement of confidentiality, agreement, or other physical evidence of the understanding that the information will be kept confidential.82 Factors to consider when determining whether information was obtained in confidence implicitly include (not exhaustive): • What is the nature of the information. Would a reasonable person regard it as confidential. Would it ordinarily be kept confidential by the government institution or the party that provided the information.83 78 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 104; SK OIPC Review Reports F-2006-002 at [51], H-2008-002 at [73]; ON IPC Order MO-1896 at p. 8. 79 SK OIPC Review Reports F-2006-002 at [52], LA-2013-002 at [57]; ON IPC Order MO-1896 at p. 8. 80 SK OIPC Review Reports F-2012-001/LA-2012-001 at [32], LA-2013-002 at [49]; ON IPC Orders PO2273 at p. 7 and PO-2283 at p. 10. 81 Saskatchewan (Ministry of Health) v West, 2022 SKCA 18 at [25]. 82 SK OIPC Review Reports F-2006-002 at [57], F-2009-001 at [62], F-2012-001/LA-2012-001 at [29], LA2013-002 at [49] and F-2014-002 at [47]. 83 BC IPC Orders 331-1999 at [8], F13-01 at [23]; NS IPC Review Reports 17-03 at [34], 16-09 at [44]; PEI IPC Order FI-16-006 at [19].