Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 85 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 research or obtain the views of others. Disclosure of these kinds of information may reveal the grounds on which the larger prosecutorial decisions are based.323 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 result in the release of information related to or used in the exercise of prosecutorial discretion. A government institution cannot rely on subsection 15(1)(k.2) 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)). IPC Findings In Review Report 004-2020, the Commissioner considered the equivalent provision in The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) (subsection 14(1)(k.2)). The City of Moose Jaw (City) had applied subsection 14(1)(k.2) of LA FOIP to an email exchange between a City Bylaw Enforcement Officer and the City’s legal counsel. The Commissioner found that the City was acting as the prosecutor and as such could exercise prosecutorial discretion. Bylaw Enforcement Officers may act on behalf of the City as a 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. 323 AB IPC Order F2007-021 at [47].
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