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. 54 Interfere with includes hindering or hampering an investigation and anything that would detract from an investigator’s ability to pursue the investigation.194 Interference can occur on concluded, active, ongoing or future investigations.195 When there is a review by the IPC, the government institution is invited to provide a submission (arguments). The government institution should describe how and why disclosure of the information in question could interfere with a lawful investigation. Government institutions should not assume that the harm is self-evident on the face of the records. b) Could release disclose information with respect to a lawful investigation? It is only necessary for the government institution to demonstrate that the information in the record is information with respect to a lawful investigation to meet this part of the test. With respect to are words of the widest possible scope; the phrase is probably the widest of any expression intended to convey some connection between two related subject matters.196 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 outcome could occur. If it is fanciful or exceedingly remote, the exemption should not be invoked.197 Records that existed before an investigation commenced, such as regular reporting information, may not qualify for the exemption.198 A government institution cannot rely on subsection 15(1)(c) of FOIP for a record that: 194 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 152. 195 Leo v Global Transportation Hub Authority, 2019 SKQB 150 at [24]. 196 The Supreme Court of Canada (SCC) established the meaning of the phrase “in respect of” in Nowegijick v. The Queen, [1983] 1 SCR 29, 1983 CanLII 18 (SCC) at [39]. The SCC later applied the same interpretation to the phrase “with respect to” in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 SCR 743, 1999 CanLII 680 (SCC) at [15] to [17]. Summary of this can be found in Gardner, J., and Gardner K. (2016) Sangan’s Encyclopedia of Words and Phrases Legal Maxims, Canada, 5th Edition, Volume 5, S to Z at p. w-97. 197SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149]. 198 SK OIPC Review Report 223-2016 at [36] to [37].