Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 139 The following two-part test can be applied: 1. Does the information constitute a trade secret? Trade Secret is defined as information, including a plan or process, tool, mechanism or compound, which possesses the following characteristics: 1. The information must be secret in an absolute or relative sense (is known only by one or a relatively small number of people). 2. The possessor of the information must demonstrate he/she has acted with the intention to treat the information as secret. 3. The information must be capable of industrial or commercial application. 4. The possessor must have an interest (e.g., an economic interest) worthy of legal protection.506 The information must meet all of the above criteria to be considered a trade secret. For the fourth criterion, the local authority must own the trade secret or be able to prove a claim of legal right to the information (i.e., license agreement). Normally, this will mean that the trade-secret information has been created by employees of the local authority as part of their jobs, or by a contractor as part of a contract with the local authority.507 2. Could release reasonably be expected to disclose the trade secret? Trade secrets can be revealed in two ways: 1. The information itself consists of trade secrets. 2. The information, if disclosed, would permit the drawing of accurate inferences as to the nature of the actual trade secrets.508 506 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [109] to [112]. Definition relied on by Justice Zarzeczny in Canadian Bank Note Limited v Saskatchewan Government Insurance, 2016 SKQB 362 (CanLII) at [32]. 507 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 190. Similar requirement in British Columbia Government Services, FOIPPA Policy and Procedures Manual. 508 Adapted from ON IPC Orders PO-3470-R at [28], PO-2084 at p. 8 and PO-2028 at pp. 10 and 11, upheld on judicial review in Ontario (Ministry of Northern Development and Mines) v. Ontario (Assistant Information and Privacy Commissioner), [2004] O.J. No. 163 (Div. Ct.), aff’d [2005] O.J. No. 4048 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 564. See also Order PO-1993 at p. 12, upheld on judicial review in Ontario (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner), [2005] O.J. No. 4047 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 563.
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