Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter3, Access to Records. Updated 5 May 2023. 13 It is not reasonable for a local authority to rely on an employee’s opinion that no records exist when deciding not to search. A local authority should not rely on anyone’s memory as to whether records were created. It cannot know in advance of doing a search whether an individual will be right about whether records were created. All an individual can say, with any reasonable certainty, is whether they personally created any records. Otherwise, the individual is merely expressing an opinion as to the likelihood of whether anyone else created records. A local authority cannot absolve itself of its duty to search based on an individual’s opinion about whether records were created. If a local authority could forego its duty to search based on such an opinion, the Act would be frustrated.19 IPC Review of Search Efforts Subsection 38(1)(a) of LA FOIP provides that applicants can request a review by the Commissioner if they are not satisfied with the decision of the local authority pursuant to sections 7, 12 or 36. The matter of search efforts is covered in subsection 7(2)(e) of LA FOIP. Subsection 7(2)(e) of LA FOIP provides that a local authority can respond to an applicant’s access to information request indicating that access is denied because records do not exist. Applicants must establish the existence of a reasonable suspicion that a local authority is withholding a record or has not undertaken an adequate search for a record. Sometimes this can take the form of having possession of or having previously seen a document that was not included with other responsive records or media reports regarding the record. The applicant is expected to provide something more than a mere assertion that a document should exist.128F 20 A review by the Commissioner of a local authority’s search efforts can occur in one or both of the following situations: 1. The local authority issued a section 7 decision letter indicating records did not exist. 2. The applicant believes there are more records than what the local authority provided. 19 AB Order 99-021 at [33] to [35]. Also quoted in SK OPIC Review Report 180-2019 at [22]. 20 NFLD IPC, Resource, Practice Bulletin, Reasonable Search, a p. 2.
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