Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 85 2. Is the information related to or was it used in the exercise of the discretion? Relating to should be given a plain but expansive meaning.316 The phrase should be read in its grammatical and ordinary sense. There is no need to incorporate complex requirements (such as “substantial connection”) for its application, which would be inconsistent with the plain unambiguous meaning of the words of the statute.317 “Relating to” requires some connection between the information and the exercise of prosecutorial discretion.318 Most records relating to this exemption will be in the possession or under the control of the Ministry of Justice. Copies of records or notes reflecting the discretion exercised may be in the files of local authorities or police services.319 The fact that information is in a Crown Prosecutor’s files does not necessarily mean that the information relates to the exercise of prosecutorial discretion. The substance, not location, of the information is determinative.320 3. Could disclosure reveal this information? 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.321 For this provision to apply there must be objective grounds for believing that disclosing the information could reveal information related to or used in the exercise of prosecutorial discretion. Reveal means to make known; cause or allow to be seen.322 There are also many smaller decisions regarding the “nature and extent” of a prosecution. For example, there are decisions to request and review information, conduct particular legal 316 Gertner v. Lawyers’ Professional Indemnity Company, 2011 ONSC 6121 (CanLII) at [32]. 317 Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII) at [45]. This case dealt specifically with an appeal regarding Ontario’s FOIP legislation. 318 Adapted from Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII) at [43]. 319 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 p. 153. 320 AB IPC Order F2007-021 at [51]. Referenced in Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 p. 153. 321 SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149]. 322 Pearsall, Judy, Concise Oxford Dictionary, 10th Ed., (Oxford University Press) at p. 1224.
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