Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 238 For more on what the Commissioner requires, see Part 9: Solicitor-Client or Litigation Privilege in the Rules of Procedure. If the local authority provides less than what is needed for a prima facie case to be met, the Commissioner may request additional details. If the local authority fails to provide the additional details, the Commissioner may do one or both of the following, pursuant to subsection 43(2) of LA FOIP: • Summon and enforce the appearance of any person, including employees of a government institution, before the Commissioner and compel them to give oral and/or written evidence under oath or affirmation and produce any documents required. • Seek an order from the Court of King’s Bench for production of the records from the local authority. Common Interest Privilege Common interest privilege is a privilege that exists when records are provided among parties where several parties have a common interest in anticipated litigation;836 Disclosure of privileged information to outsiders generally constitutes as a waiver of privilege. However, if there is a sharing of information between parties where the parties have a sufficient “common interest”, then the privilege is preserved (or not waived). The following two-part test can be applied when determining if common interest privilege applies:837 1. Does the record contain information that is subject to any privilege that is available at law? The information at issue must be inherently privileged in that it must have arisen in such a way that it meets the definition of solicitor-client privilege under subsection 21(a) of LA FOIP. 2. Do the parties who share the information have a “common interest”, but not necessarily an identical interest, in the information? 836 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 199. 837 SK OIPC Review Report 298-2019 at [53]. This test was adapted from AB IPC’s two-part test in Order 97-009 and ON IPC’s Order PO-3154.
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