Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 6, Protection of Privacy. Updated 27 February 2023. 285 Invasion of privacy is a term that means the privacy of a person has been invaded.747 Invasion means an encroachment upon the rights of another.748 An encroachment on the privacy rights under Part IV of FOIP which pertains to the collection, use, and/or disclosure of one’s personal information under FOIP. When considering this provision, the “invasion-of-privacy” test can assist to determine the level of privacy risk in the disclosure. It involves a detailed review of three interrelated risk factors that may help determine whether disclosure poses an unreasonable invasion of privacy. These three factors are the sensitivity of the information, the expectations of the individual and the probability and degree of injury. In addition, government institutions should consider factors unique to their own operational context, as applicable.749 For example, for purposes of subsection 30(2) of FOIP, a consideration would be how long the individual has been deceased. Deceased individuals have privacy rights, but they diminish over time.750 Other relevant motives could be the reason an applicant seeks access. The motive of an applicant is not usually relevant in access requests, however, in the context of cases involving family members seeking information to deal with a death and its aftermaths, it has been considered appropriate to do so.751 (1) Sensitivity of the information • Consider whether the type of information is of a detailed (e.g., name and address) or highly personal (e.g., health information) nature. • Evaluate the context in which the information was collected and determine whether any contextual sensitivities apply to the information. For example, a list of public servants may not be considered particularly sensitive, but that same list, if collected to identify employees having a specific illness would be considered sensitive based on the context. 747 The Law Dictionary, Black’s Law Dictionary, Free 2nd ed. Available at INVASION OF PRIVACY Definition & Meaning - Black's Law Dictionary (thelawdictionary.org). 748 The Law Dictionary, Black’s Law Dictionary, Free 2nd ed. Available at INVASION Definition & Meaning - Black's Law Dictionary (thelawdictionary.org). 749 Adapted from Privacy Commissioner of Canada, Public Interest Disclosures by federal institutions under the Privacy Act, revised June 2022. Available at Public interest disclosures by federal institutions under the Privacy Act - Office of the Privacy Commissioner of Canada. Accessed December 15, 2022. 750 BC IPC Order F15-36 at [29]. At paragraphs [29] to [30] of this Order, the BC IPC established that 2 ½ years or less since the individual died was not a sufficient amount of time to justify release on that factor alone. 751 BC IPC Order F15-36 at [31]. At paragraphs [29].
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