Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 127 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”… A local authority cannot rely on subsection 16(1)(d) 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. IPC Findings In Review Report 166-2018, the Commissioner considered the equivalent provision in The Freedom of Information and Protection of Privacy Act (FOIP). An applicant had made an access to information request to the Saskatchewan Legal Aid Commission (SLAC) for any proposals and correspondence related to proposals prepared by SLAC that called for the closure of the Saskatoon Legal Aid office. The SLAC responded to the applicant advising that it was denying access to all of the records citing several provisions under FOIP including subsection 17(1)(d). The record consisted of 843 pages of records including emails and drafts of proposed plans. Upon review, the Commissioner found that subsection 17(1)(d) of FOIP did not apply to the records because the proposed plans had been replaced with a different plan. It was not clear that the plan was intended to be implemented anymore. In Review Report LA-2014-004, the Commissioner considered subsection 16(1)(d) of LA FOIP. An applicant had made an access to information request to the University of Regina (U of R) for any records where the applicant had been discussed or mentioned during meetings that occurred over three dates. The U of R responded to the applicant advising that all of the records were withheld pursuant to subsections 14(1)(d) and 16(1)(d) of LA FOIP. The record consisted of 40 pages of notes taken during the meetings responsive to the applicant’s access to information request. Upon review, the Commissioner found that 13 of the 40 pages
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