Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 211 • The inability to use or rely upon the tests or to use the techniques etc.722 Subsection 19(a) Testing procedures, tests and audits 19 A head may refuse to give access to a record that contains information relating to: (a) testing or auditing procedures or techniques; or … if disclosure could reasonably be expected to prejudice the use or results of particular tests or audits. Subsection 19(a) of LA FOIP is a discretionary, harm-based exemption. It permits refusal of access in situations where a record contains information relating to testing or auditing procedures or techniques if disclosure could reasonably be expected to prejudice the use or results of particular tests or audits. The following two-part test can be applied: 1. Does the record contain information relating to testing or auditing procedures or techniques? Relating to should be given a plain but expansive meaning.723 The phrase should be read in its grammatical and ordinary sense. There is no need to incorporate complex requirements (such as “substantial connection”) for its application, which would be inconsistent with the plain unambiguous meaning of the words of the statute.724 “Relating to” requires some connection between the information and the testing or auditing procedures or techniques.725 A test is a set of questions, exercises or practical activities that measure either what someone knows or what someone or something is like or can do.726 722 Information Commissioner of Canada resource, Investigator’s Guide to Interpreting the Act, Section 22: Testing or Audits. Available at https://www.oic-ci.gc.ca/en/investigators-guide-interpretingact/section-22-testing-or-audits. Accessed September 5, 2019. 723 Gertner v. Lawyers’ Professional Indemnity Company, 2011 ONSC 6121 (CanLII) at [32]. 724 Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII) at [45]. This case dealt specifically with an appeal regarding Ontario’s FOIP legislation. 725 Adapted from Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII) at [43]. 726 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 1776.
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