Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 152 Once a contract is executed, negotiation is concluded. The exemption would generally not apply unless, for instance, the same strategy will be used again, and it has not been publicly disclosed.548 The exemption covers negotiations either conducted directly by employees or officers of a local authority or conducted by a third party acting as an agent of the local authority. It does not cover information relating to negotiations to which a local authority is not a party.549 When under review by the IPC, local authorities will be invited to provide the IPC with its submission (i.e., arguments) as to why the exemption applies. Local authorities should detail what negotiations are occurring and what parties are involved. 2. Could release of the record reasonably be expected to interfere with the contractual or other negotiations? Interfere means to hinder or hamper.550 There must be a reasonable expectation that disclosure could interfere with contractual or other negotiations. The Supreme Court of Canada set out the standard of proof for harmsbased provisions as follows: 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”…551 548 British Columbia Government Services, FOIPPA Policy and Procedures Manual at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/disclosure-harmful-economic-interests. Accessed July 19, 2019. Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 107. 549 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.11.2. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_11. Accessed July 19, 2019. 550 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 152. 551 Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2014] 1 SCR 674, 2014 SCC 31 (CanLII) at [54].
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