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. 58 Parallel civil court action does not bar or preclude a formal review by the IPC.207 Discovery and disclosure provisions of The Queen’s Bench Rules of Saskatchewan operate independent of any process under FOIP. Subsection 4(c) of FOIP establishes that FOIP does not limit access to information otherwise available by law to parties to litigation. Section 4 also establishes that FOIP complements and does not replace existing procedures for access to records. Therefore, the injury should be above and beyond any prejudice that relates to the production of a relevant, non-privileged document in the usual course of a lawsuit.208 Where there are concerns or objections to the admissibility of any records in legal proceedings, such concerns could be argued before that tribunal. If a record is prejudicial to a government institution’s position, it would have the usual opportunity to make a submission to the tribunal who will then make a determination as it determines appropriate.209 In Britto v University of Saskatchewan, (2018), Justice Danyliuk confirmed the above position at paragraph [61] but determined that it did not go far enough. Danyliuk J. added at paragraph [66] that the Act does not trump every potential privilege claim simply because the documents disclosed may later be argued to be inadmissible. The problem is twofold: not only is there potential use and abuse of the disclosed record before any admissibility ruling is made under the adjudicative process, but there is also the broader problem of the undercutting of the free communications essential to seeking and obtaining legal advice.210 Admissibility means the quality, state, or condition of being allowed to be entered into evidence in a hearing, trial or other official proceeding.211 A government institution cannot rely on subsection 15(1)(d) of FOIP for a record that: 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 (see subsection 15(2)). 207 SK OIPC Review Report LA-2013-001 at [48]. 208 SK OIPC Review Reports LA-2007-001 at [121], 145-2015 at [13], 153-2015 at [61], 223-2015 and 224-2015 at [19]. 209 SK OIPC Review Reports LA-2014-004 at [15] and 153-2015 at [64]. 210 Britto v University of Saskatchewan, 2018 SKQB 92 at [61], [66] and [68]. 211 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 57.