Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 74 The following two-part test can be applied. However, only one of the questions needs to be answered in the affirmative for the exemption to apply. There may be circumstances where both questions apply and can be answered in the affirmative. 1. Could release of the record facilitate the commission of an offence? 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.275 For this provision to apply there must be objective grounds for believing that releasing the information could facilitate the commission of an offence. Facilitate to make the occurrence of something easier; to render less difficult.276 Commission of an offence means committing a breach of law.277 Examples include information about techniques, tools and instruments used for criminal acts; names of individuals with permits for guns; the location of police officers; and the location of valuable assets belonging to a government institution.278 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. 2. Could release of the record tend to impede the detection of an offence? 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.279 For this 275 SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149]. 276 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 734. 277 British Columbia Government Services, FOIPPA Policy Definitions at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/policy-definitions. Accessed April 23, 2020. 278 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 154. 279 SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149].
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