Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 19 Implicitly means that the confidentiality is understood even though there is no actual statement of confidentiality, agreement, or other physical evidence of the understanding that the information will be kept confidential.39 Factors to consider when determining whether information was obtained in confidence implicitly include (not exhaustive): • What is the nature of the information. Would a reasonable person regard it as confidential. Would it ordinarily be kept confidential by the local authority or the party that provided the information.40 • Was the information treated consistently in a manner that indicated a concern for its protection by the local authority and the party that provided the information from the point it was obtained until the present time.41 • Is the information available from sources to which the public has access.42 • Does the local authority have any internal policies or procedures that speak to how records such as the one in question are to be handled confidentially. • Was there a mutual understanding that the information would be held in confidence. Mutual understanding means that the local authority and the party that provided the information both had the same understanding regarding the confidentiality of the information at the time it was provided. If one party intends the information to be kept confidential but the other does not, the information is not considered to have been obtained in confidence. However, mutual understanding alone is not sufficient. Additional factors must exist.43 The preceding factors are not a test but rather guidance on factors to consider. It is not an exhaustive list. Each case will require different supporting arguments. The bare assertion that the information was obtained implicitly in confidence would not be sufficient.44 39 SK OIPC Review Reports F-2006-002 at [57], F-2009-001 at [62], F-2012-001/LA-2012-001 at [29], LA2013-002 at [49], F-2014-002 at [47]. 40 BC IPC Orders 331-1999 at [8], F13-01 at [23], Office of the Nova Scotia Information and Privacy Commissioner (NS IPC) Review Report 17-03 at [34]; Office of the Prince Edward Island Information and Privacy Commissioner (PEI IPC) Order FI-16-006 at [19]; NS IPC Review Report 16-09 at [44]. 41 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 42 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 43 Jacques Whitford Environment Ltd. v. Canada (Minister of National Defence), 2001 FCT 556 at [40]; SK OIPC Review Reports F-2006-002 at [52], LA-2013-002 at [58] to [59]; ON IPC Order MO-1896 at p. 8; BC IPC Order F-11-08 at [32]. 44 SK OIPC Review Report LA-2013-002 at [60].
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