Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 140 Section 17 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 exemptions. 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 some of the exemptions contained in section 17 of LA FOIP are not harms-based exemptions, 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 17(1)(a) of LA FOIP for a record that fits within the enumerated exclusions listed at subsection 17(2) of LA FOIP. Before applying subsection 17(1) of LA FOIP, local authorities should ensure that subsection 17(2) of LA FOIP does not apply to any of the records. IPC Findings In Review Report 185-2016, the Commissioner considered the equivalent subsection of The Freedom of Information and Protection of Privacy Act (FOIP). An applicant made an access to information request to Saskatchewan Power Corporation (SaskPower) for a copy of the CO2 supply agreement between SaskPower and Cenovus. SaskPower responded to the applicant advising that the supply agreement was being withheld in full pursuant to several exemptions including subsection 18(1)(a) of FOIP. The records included an original Carbon Dioxide Purchase and Sale Agreement between SaskPower and Cenovus and two amending agreements. SaskPower applied subsection 18(1)(a) to Schedule B of each agreement. SaskPower asserted the information contained in the schedules were trade secrets as they were the specifications of the compressed carbon dioxide (CO2) that SaskPower was selling. Upon review, the Commissioner agreed that the information was a trade secret as it qualified as a formula. Furthermore, the Commissioner was satisfied that the formula was a secret and that SaskPower demonstrated that it has acted with the intention to treat the information as
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