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. 42 This Court in Merck Frosst adopted the “reasonable expectation of probable harm” formulation and it should be used wherever the “could reasonably be expected to” language is used in access to information statutes. As the Court in Merck Frosst emphasized, the statute tries to mark out a middle ground between that which is probable and that which is merely possible. An institution must provide evidence “well beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground: paras. 197 and 199. This inquiry of course is contextual and how much evidence and the quality of evidence needed to meet this standard will ultimately depend on the nature of the issue and “inherent probabilities or improbabilities or the seriousness of the allegations or consequences”… In British Columbia (Minister of Citizens’ Service) v. British Columbia (Information and Privacy Commissioner), (2012), Justice Bracken confirmed it is the release of the information itself that must give rise to a reasonable expectation of harm. Government institutions should not assume that the harms are self-evident. The harm must be described in a precise and specific way in order to support the application of the provision. The expectation of harm must be reasonable, but it need not be a certainty. The evidence of harm must: • Show how the disclosure of the information would cause harm; • Indicate the extent of harm that would result; and • Provide facts to support the assertions made.147 147 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.14.5. Available at Accessed August 29, 2019.