Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 154 3. Could disclosure reasonably be expected to deprive the employee of priority publication? For this exemption to be invoked, the employee must be actively engaged in the research with a reasonable expectation of publication.538 There must be a reasonable expectation that disclosure could deprive the employee of priority publication. 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”…539 The local authority does not have to prove that a harm is probable but needs to show that there is a “reasonable expectation of harm” if any of the information were to be released. In British Columbia (Minister of Citizens’ Service) v. British Columbia (Information and Privacy Commissioner), (2012), Bracken J. confirmed it is the release of the information itself that must give rise to a reasonable expectation of harm. Local authorities should not assume that the harm is self-evident. The harm must be described in a precise and specific way in order to support the application of the provision. The expectation of harm must be reasonable, but it need not be a certainty. The evidence of harm must: • Show how the disclosure of the information would cause harm; • Indicate the extent of harm that would result; and 538 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.11.3. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_11. Accessed July 17, 2019. 539 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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