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. 57 Labour grievances qualify as “legal proceedings” for statutory purposes.201 To qualify for this exemption, the legal proceedings must be “existing or anticipated” as the provision uses these terms. Anticipated means more than merely possible.202 To regard as probable.203 2. Could disclosure of the records be injurious to the government institution in the conduct of the legal proceedings? There must be objective grounds for believing that disclosing the information could result in injury. 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.204 Injury implies damage or detriment.205 The exemption is designed to protect the government institution from harm in its existing or anticipated legal proceedings. In order for the release of a record to be injurious to the government institution (or Government of Saskatchewan) “in the context of existing or anticipated legal proceedings”, the government institution (or Government of Saskatchewan) would need to be a party to such proceedings.206 When there is a review by the IPC, the government institution is invited to provide a submission (arguments). The government institution should describe the harm in detail to support the application of the provision. Government institutions should not assume that the harm is self-evident on the face of the records. West Group at p. 1458, First adopted by SK OIPC in Review Report LA-2013-001 at [25] and [27], Affirmed in Britto v University of Saskatchewan, 2018 SKQB 92 at [44] and [49]. 201 Park v. The Queen, 2012 TCC 306 at [65], Relied on in Britto v University of Saskatchewan, 2018 SKQB 92 at [47], Also found in Review Reports LA-2013-001 at [23] to [31], LA-2014-004 at [15]. 202 Britto v University of Saskatchewan, 2018 SKQB 92 at [58]. 203 Concise Oxford English Dictionary, 10th Edition, Revised, 2002, USA: Oxford University Press at p. 56. 204 SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149]. 205 Adapted from definition of ‘harm’ in Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 148. 206 SK OIPC Review Report LA-2013-001 at [32].