Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 62 o The need for public awareness of legislative or regulatory gaps or inadequacies in the areas of public health, safety, or environmental protection. • Were the interests of all groups interested in disclosure of the information considered. o How • What is the danger of further disclosure. • Was the decision not to apply subsection 19(3) based in part on a fear of public confusion. o If so, what would give rise to or cause the confusion. • Could the government institution take measures to reduce or eliminate the dangers. o Are there public relations measures. o Are there explanations that can be given. o Why could no other measures be taken. • Could the third party take measures (with respect to subsection 19(1) information) that could reduce the impact on them of disclosure. o What measures. o Why could no measures be taken. • Was the government’s own performance an issue in the consideration leading to a decision to not apply subsection 19(3). • Have there been any allegations of impropriety, negligence, cover-up or inadequacy about the government institution arising from the matters described in the records. • Has the government institution responded to these allegations. Subsection 19(3) includes the requirement that the public interest in disclosure “could reasonably be expected” to clearly outweigh in importance the harms listed. The meaning of the phrase “could reasonably be expected to” in terms of harm-based exemptions was considered by the Supreme Court of Canada in Ontario (Community Safety and Correctional Service) v. Ontario (Information and Privacy Commissioner), (2014): This Court in Merck Frosst adopted the “reasonable expectation of probable harm” formulation and it should be used wherever the “could reasonably be expected to” language is used in access to information statutes. As the Court in Merck Frosst emphasized, the statute tries to mark out a middle ground between that which is probable and that which is merely possible. An institution must provide evidence “well
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