Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 181 • Information has not been held to be confidential even if the third party considered it so, where it has been available to the public from other sources or where it has been available at an earlier time or in another form from government; and • Information is not confidential where it could be obtained by observation albeit with more effort by the applicant.653 Compulsory supply means there is a compulsory legislative requirement to supply information. Where supply is compulsory, it will not ordinarily be confidential. In some cases, there may be indications in the legislation relevant to the compulsory supply that establish confidentiality The relevant legislation may even expressly state that such information is deemed to have been supplied in confidence.654 Where information is required to be provided, unless otherwise provided by statute, confidentiality cannot be built in by agreement, informally or formally.655 Example: In Review Report 043-2015, the Commissioner found that the equivalent provision in The Freedom of Information and Protection of Privacy Act did not apply because the third party was required to provide the information in question to the Ministry of Environment pursuant to The Environmental Management and Protection Act, 2002, The Water Regulations and The Clean Air Act. As such, this constituted compulsory supply. In addition, these statutes did not have any confidentiality provisions related to the types of information in question. In the decision Merck Frosst Canada Ltd. v. Canada (Health), (2012), the Supreme Court of Canada established that information is not confidential if it is in the public domain, including being publicly available through another source. To be confidential, the information must not be available from sources otherwise accessible by the public or obtainable by observation or independent study by a member of the public acting on his or her own. Information that has been published is not confidential. Furthermore, information, which merely reveals the existence of publicly available information, cannot generally be confidential.656 653 Air Atonabee Ltd. v. Minister of Transport, (1989), 27 C.P.R. (3d) 180 (F.C.T.D.) at p.11. Stenotran Services v. Canada (Minister of Public Works and Government Services), 2000 CanLII 15464 (FC) at [9] citing Air Atonabee. It is important to note that subsection 20(1)(b) of the federal ATIA places the focus on the confidential nature of the information itself. SK’s subsection 19(1)(b) of FOIP places the focus on the confidential nature of the supply. However, Air Atonabee may still be instructive with interpreting SK’s subsection 19(1)(b) of FOIP. 654 Chesal v. Nova Scotia (Attorney General) et al., 2003 NSCA 124 (CanLII) at [72] and [73] and Stevens v. Canada (Prime Minister), [1997] 2 FC 759, 1997 CanLII 4805 (FC) at p. 1. Also, see NS IPC Review Report 17-03 at [98] and SK OIPC Review Reports F-2006-001 at [76] to [78]. 655 SK OIPC Review Report F-2006-001 at [78]. 656 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [146].
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