Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 118 section 16 of LA FOIP is not a harms-based provision, the threshold provided by the Court for “could reasonably be expected to” is instructive: 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 beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground: paras. 197 and 199. This inquiry of course is contextual and how much evidence and the quality of evidence needed to meet this standard will ultimately depend on the nature of the issue and “inherent probabilities or improbabilities or the seriousness of the allegations or consequences”… There is often confusion among government institutions as to when to apply subsection 16(1)(a) of LA FOIP versus subsection 16(1)(b) of LA FOIP. Subsection 16(1)(a) of LA FOIP is intended to protect communications developed for a local authority by an advisor, while subsection 16(1)(b) of LA FOIP protects communications involving decision-makers. This is supported by the use of the word “deliberation”: only a person charged with making a decision can be said to deliberate that decision. Moreover, “consultation” typically refers to the act of seeking advice regarding an action one is considering taking, but not to giving advice in relation to it. Information that is the subject of subsection 16(1)(a) of LA FOIP may be voluntarily or spontaneously provided to a decision-maker for the decision-makers’ use because it is the responsibility of an employee to provide information of this kind; however, such information cannot be described as a “consultation” or a “deliberation”. Put simply, subsection 16(1)(a) of LA FOIP is concerned with the situation where advice is given, subsection 16(1)(b) of LA FOIP is concerned with the situation where advice is sought or considered.437 A local authority cannot rely on subsection 16(1)(b) of LA FOIP for a record that fits within the enumerated exclusions listed at subsection 16(2) of LA FOIP. Before applying subsection 16(1) of LA FOIP, local authorities should ensure that subsection 16(2) of LA FOIP does not apply to any of the records. 437 SK OIPC Review Report 119-2022 at [23] to [24].
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