Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 187 provided, unless otherwise provided by statute, confidentiality cannot be built in by agreement, informally or formally.656 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.657 Contractors setting out to win local authority contracts through a confidential bidding process should not expect that the monetary terms, in the event that the bid succeeds, will remain confidential. The public’s right to know how a local authority spends public funds as a means of holding the local authority accountable for its expenditures is a fundamental notion of responsible government that is known to all.658 Simply labelling documents as “confidential” does not, on its own, make the documents confidential (i.e., confidentiality stamps or standard automatic confidentiality statements at the end of emails). It is just one factor that we consider when determining whether the information was explicitly supplied in confidence.659 The typical bottom of e-mail “confidentiality” note is not sufficient to establish that information was supplied in confidence. Such notes are largely format and platitudes.660 656 SK OIPC Review Report F-2006-001 at [78]. 657 Merck Frosst Canada Ltd. v. Canada (Health), [2012] 1 SCR 23, 2012 SCC 3 (CanLII) at [146]. 658 Canada (Minister of Public Works and Government Services) v. Hi-Rise Group Inc., 2004 FCA 99 (CanLII) at [37] and [42]. 659 SK OIPC Review Report F-2012-001/LA-2012-001 at [43]. 660 Brewster Inc. v. Canada (Environment), 2016 FC 339 (CanLII) at [22].
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