Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 45 Subsection 15(1)(a) of FOIP is a discretionary harm-based exemption. It permits refusal of access in situations where release of a record could prejudice, interfere with or adversely affect the detection, investigation, prevention or prosecution of an offence or the security of a centre of lawful detention. Section 15 of FOIP uses the word could versus “could reasonably be expected to” as seen in other provisions of FOIP. The threshold for could is somewhat lower than a reasonable expectation. The requirement for could is simply that the release of the information could have the specified result. There would still have to be a basis for asserting the harm could occur. If it is fanciful or exceedingly remote, the exemption should not be invoked.150 For this provision to apply there must be objective grounds for believing that disclosing the information could result in the harm alleged. Prejudice in this context refers to detriment to the detection, investigation, prevention or prosecution of an offence or the security of a centre of lawful detention.151 Interfere with includes hindering or hampering an ongoing investigation and anything that would detract from an investigator’s ability to pursue the investigation.152 Adversely affect in this context means to have a harmful or unfavorable impact153 on the detection, investigation, prevention or prosecution of an offence or the security of a centre of lawful detention. Detection is the act of discovering or revealing something that is hidden or barely perceptible, especially to solve a crime.154 Investigation can include police, security or administrative investigations or a combination of these. Investigation has been defined, in general terms, as a systematic process of examination, inquiry and observation.155 • A police investigation is one carried out by the police, or other persons who carry out a policing function that involves investigations.156 For example, a police investigation may include an investigation by a special constable appointed under The Police Act, 1990. 150 SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149]. 151 Adapted from Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 149. 152 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 152. 153 Pearsall, Judy, Concise Oxford English Dictionary, 10th Ed. at p. 19, (Oxford University Press). 154 Garner, Bryan A., 2009. Black’s Law Dictionary, Deluxe 10th Edition. St. Paul, Minn.: West Group at p. 543. 155 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 146. 156 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 146.
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