Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 130 Subsection 16(1)(e) of LA FOIP includes the requirement that access can be refused where it “could reasonably be expected to disclose” a pending policy or budgetary decision. 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)(e) 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”… Pending means awaiting decision or settlement; about to happen.483 A policy is a standard course of action that has been officially established by the local authority.484 Budgetary means of or pertaining to a budget. A budget is a periodic, (especially annual) estimate of revenue and expenditure.485 Decision means the action of coming to a determination or resolution with regard to any point or course of action; resolution or conclusion arrived at.486 The local authority must tie the information in the record to the pending policy or budgetary decision that could be disclosed. A local authority cannot rely on subsection 16(1)(e) of LA FOIP for a record that fits within the enumerated exclusions listed at subsection 16(2) of LA FOIP. Before applying subsection 483 Pearsall, Judy, Concise Oxford Dictionary, 10th Edition at p. 1055 (Oxford University Press). 484 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 1401. 485 Shorter Oxford English Dictionary on Historical Principles, 6th Edition, Volume 1. A-M, (Oxford University Press) at p. 304. 486 Shorter Oxford English Dictionary on Historical Principles, 6th Edition, Volume 1. A-M, (Oxford University Press) at p. 619.
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