Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 105 (ii) a substantive rule or statement of policy that has been adopted by a local authority for the purpose of interpreting an Act, regulation, resolution or bylaw or administering a program or activity of the local authority. (3) A head may refuse to give access to any report, statement, memorandum, recommendation, document, information, data or record, within the meaning of section 10 of The Evidence Act, that, pursuant to that section, is not admissible as evidence in any legal proceeding. Section 16 of LA FOIP is a discretionary class-based provision. It is intended to allow for candor during the decision-making process. The Supreme Court of Canada addressed the purpose of the equivalent provision in Ontario’s Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 13(1) in John Doe v. Ontario (Finance), (2014): [43] The purpose of this provision is to preserve an effective and neutral public service so as to permit public servants to provide full, free and frank advice… Failing to exempt such material risks having advice or recommendations that are less candid and complete, and the public service no longer being perceived as neutral… [44] In my opinion, Evens J. (as he then was) in Canada Council of Christian Charities v. Canada (Minister of Finance), 1999 CanLII 8293 (FC), [1999] 4 F.C. 245, persuasively explained the rationale for the exemption for advice given by public servants. Although written about the equivalent federal exemption, the purpose and function of the federal and Ontario advice and recommendations exemptions are the same. I cannot improve upon the language of Evans J. and his explanation and I adopt them as my own: To permit or to require the disclosure of advice given by officials, either to other officials or to ministers, and the disclosure of confidential deliberations within the public service on policy options, would erode government’s ability to formulate and to justify its policies. It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely. In the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness. [paras. 30-31]
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