Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 63 2. Could disclosure reveal information that was provided by the confidential source with respect to a lawful investigation or law enforcement matter? 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 the assertion. If it is fanciful or exceedingly remote, the exemption should not be invoked.227 For this provision to apply there must be objective grounds for believing that disclosing the information could disclose the identity of a confidential source of information or disclose information furnished by a confidential source. 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.228 The information must relate to a lawful investigation and/or law enforcement matter. A lawful investigation is an investigation that is authorized or required and permitted by law.229 Law enforcement includes:230 a) Policing, including criminal intelligence operations. Policing refers to the activities of police services. This means activities carried out under the authority of a statute regarding the maintenance of public order, detection and prevention of crime or the enforcement of law.231 227 SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149]. 228 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. 229 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]. 230 Definition from Newfoundland and Labrador’s Access to Information and Protection of Privacy Act, SNL 2002, c A-1.1 at subsection 2(i), similar definition in Ontario’s Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Chapter F.31 at subsection 2(1)(b), similar definition in Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 145. 231 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 145.
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