Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 29 • Was the information treated consistently in a manner that indicated a concern for its protection by the government institution and the party that provided the information from the point it was obtained until the present time.84 • Is the information available from sources to which the public has access.85 • Does the government institution have any internal policies or procedures that speak to how records such as the one in question are to be handled confidentially. • Was there a mutual understanding that the information would be held in confidence. Mutual understanding means that the government institution and the party that provided the information both had the same understanding regarding the confidentiality of the information at the time it was provided. If one party intends the information to be kept confidential but the other does not, the information is not considered to have been obtained in confidence. However, mutual understanding alone is not sufficient. Additional factors must exist in addition.86 The preceding factors are not a test but rather guidance on factors to consider. It is not an exhaustive list. Each case will require different supporting arguments. The bare assertion that the information was obtained implicitly in confidence would not be sufficient.87 Explicitly means that the request for confidentiality has been clearly expressed, distinctly stated or made definite. There may be documentary evidence that shows that the information was obtained with the understanding that it would be kept confidential.88 Factors to consider when determining if information was obtained in confidence explicitly include (not exhaustive): • The existence of an express condition of confidentiality between the government institution and the party that provided the information.89 84 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 85 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 86Jacques Whitford Environment Ltd. v. Canada (Minister of National Defence), 2001 FCT 556 at [40]; SK OIPC Review Reports F-2006-002 at [52], LA-2013-002 at [58] to [59]; ON IPC Order MO-1896 at p. 8; BC IPC Order F-11-08 at [32]. 87 SK OIPC Review Report LA-2013-002 at [60]. 88 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at pp. 104 and 105. 89 SK OIPC Review Reports F-2006-002 at [56], LA-2013-003 at [113], F-2014-002 at [47]; PEI IPC Order 03-006 at p. 5; AB IPC Orders 97-013 at [23] to [24], 2001-008 at [54].
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