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. 53 (a) provides a general outline of the structure or programs of a law enforcement agency; or (b) reports, by means of statistical analysis or otherwise, on the degree of success achieved in a law enforcement program. Subsection 15(1)(c) of FOIP is a discretionary class-based and harm-based exemption. Meaning it contains both a class and harm based component. It permits refusal of access in situations where the release of a record could interfere with a lawful investigation or disclose information with respect to a lawful investigation. The following two-part test can be applied: 1. Does the government institution’s activity qualify as a “lawful investigation?” A lawful investigation is an investigation that is authorized or required and permitted by law.190 The government institution should identify the legislation under which the investigation is occurring. The investigation can be concluded, active and ongoing or be occurring in the future.191 It is not limited to investigations that are conducted by a government institution.192 In other words, it can include investigations conducted by other organizations (e.g., a police investigation). 2. Does one of the following exist? a) Could release of the information interfere with a lawful investigation? 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.193 190 First defined in SK OIPC Review Report 93/021 at p. 6. Adopted in SK OIPC Review Report F-2004006 at [26] and F-2014-001 at [160]. 191 Leo v Global Transportation Hub Authority, 2019 SKQB 150 at [24]. 192 Leo v Global Transportation Hub Authority, 2019 SKQB 150 at [25]. 193 SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149].