Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 122 The contractual or other negotiations can be concluded,453 ongoing or future negotiations.454 There must be a clear indication that the information was “developed for the purpose of” negotiations. There must be a clear indication that the negotiations were in mind when the record was developed.455 Subsection 16(1) of LA FOIP includes the requirement that access can be refused where it “could reasonably be expected to disclose” the protected information listed in the exemption. 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). Although subsection 16(1)(c) 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” … Drafts and redrafts of positions, plans, procedures, criteria, instructions may be protected by the exemption. A public servant may engage in writing any number of drafts before communicating part or all their content to another person. The nature of the deliberative process is to draft and redraft until the writer is sufficiently satisfied that they are prepared to communicate the results to someone else. All the information in those earlier drafts informs the result even if the content of any one draft is not included in the final version.456 b. By or on behalf of the local authority 453 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.18.5. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_18. Accessed July 10, 2019. Also consistent with Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 181. 454 SK OIPC Review Report LA-2010-001 at [51]. 455 NU IPC Review Report 20-170 at p. 6. 456 John Doe v. Ontario (Finance), [2014] 2 SCR 3, 2014 SCC 36 (CanLII) at [48] to [51].
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