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. 70 The following two-part test can be applied: 1. Is there an individual who is under lawful detention? Under lawful detention means any person held in custody pursuant to a valid warrant or other authorized order. It extends to individuals remanded in custody (charged but not yet tried or convicted). It does not include individuals released under bail supervision.258 2. Could release of the record facilitate escape from custody? 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.259 For this provision to apply there must be objective grounds for believing that disclosing the information could result in the harm alleged. Facilitate means to make the occurrence of escape easier; to render less difficult.260 Escape means the act or an instance of breaking free from confinement.261 An example of information protected by this exemption is the building plans for a correctional facility.262 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 facilitate escape. A government institution cannot rely on subsection 15(1)(h) 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)). 258 Government of Newfoundland and Labrador, resource Access to Information: Policy and Procedures Manual, October 2017 at p. 130. 259 SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149]. 260 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 734. 261 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 685. 262 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 154.