Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 236 The Commissioner has the power, under section 43 of LA FOIP, to order production of records over which solicitor-client privilege or litigation privilege is claimed.828 The Commissioner exercises this authority cautiously and with restraint given the clear direction by the courts that a reviewing body’s decision to examine privileged documents must never be made lightly or as a matter of course.829 Therefore, given the importance of solicitor-client privilege and litigation privilege, and to minimally infringe on these privileges, the Commissioner will only order production of records being withheld under solicitor-client or litigation privilege pursuant to subsection 21(a) of LA FOIP when it is absolutely necessary to decide the issues in dispute. Absolutely necessary is as restrictive a test as may be formulated short of an absolute prohibition in every case.830 As to when it would be appropriate to order production of records withheld under the solicitor-client or litigation privilege provision at subsection 21(a) of LA FOIP, the Commissioner will exercise discretion in the following circumstances: • Where there is some evidence that the party claiming privilege has done so ‘falsely” or inappropriately.831 • When the party claiming privilege fails to respond to a reasonable request by the Commissioner for additional information.832 A naked “trust me” that the records in dispute are subject to solicitor-client privilege or litigation privilege is not sufficient from the local authority when making the case that subsection 21(a) of LA FOIP applies.833 828 This has been confirmed by the Court of Appeal for Saskatchewan in University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [47]. 829 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [73], [76], and [83]. 830 Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 (CanLII), [2006] 2 SCR 32 at [20]. 831 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [53], [54] and [72]. 832 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [83]. 833 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [75].
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