Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 190 (3) Subject to Part V, a head may give access to a record that contains information described in clauses (1)(b) to (d) if: (a) disclosure of that information could reasonably be expected to be in the public interest as it relates to public health, public safety or protection of the environment; and (b) the public interest in disclosure could reasonably be expected to clearly outweigh in importance any: (i) financial loss or gain to; (ii) prejudice to the competitive position of; or (iii) interference with contractual or other negotiations of; a third party. Subclause 18(1)(c)(ii) of LA FOIP is a mandatory, harm-based exemption. It permits refusal of access in situations where disclosure of information could reasonably be expected to prejudice the competitive position of a third party. The following two-part test can be applied: 1. What is the prejudice to a third party’s competitive position that is being claimed? Prejudice in this context refers to detriment to the competitive position of a third party.670 Competitive position means the information must be capable of use by an existing or potential business competitor, whether or not that competitor currently competes for the same market share. For example: • Information that discloses the profit margin on a private company’s operations. • Marketing plans, including market research surveys, polls. • Information that reveals the internal workings of a private company.671 2. Could release of the record reasonably be expected to result in the prejudice? The disclosure of information that is not already in the public domain that is shown to give competitors a head start in developing competing products, or to give them a competitive 670 Adapted from Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 149. 671 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-business-interests-third-party. Accessed August 28, 2019.
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