Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 36 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.120 Section 13 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 a local authority. 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.121 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 local authority at the time the information was obtained.122 The expectation of confidentiality must be reasonable and must have an objective basis.123 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)) 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.124 Factors to consider when determining whether information was obtained in confidence implicitly include (not exhaustive): 120 Saskatchewan (Ministry of Health) v West, 2022 SKCA 18 at [46] and [47]. 121 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. 122 SK OIPC Review Reports F-2006-002 at [52], LA-2013-002 at [57]; ON IPC Order MO-1896 at p. 8. 123 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. 124 SK OIPC Review Reports F-2006-002 at [57], F-2009-001 at [62], F-2012-001/LA-2012-001 at [29], LA-2013-002 at [49], F-2014-002 at [47].
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