Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 246 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.860 In a review, the Commissioner requests copies of records in order to conduct the review and determine whether exemptions have been appropriately applied. This includes requesting records which a local authority may have claimed solicitor-client privilege or litigation privilege over pursuant to subsection 21(a) of LA FOIP. The local authority may choose to make a “prima facie” case of solicitor-client or litigation privilege for those records pursuant to subsection 21(a) of LA FOIP. If it does so, it must still meet the “burden of proof” in demonstrating that subsection 21(a) of LA FOIP applies as required by section 51 of LA FOIP (see the Guide to LA FOIP, Chapter 2: “Administration of LA FOIP” for more on the burden of proof). Prima facie is a Latin expression that means “at first sight”, “at first view” or “based on first impression”. The term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to judgement.861 A prima facie case can be made to the Commissioner without providing a copy of the records but only for records that may be subject to solicitor-client and litigation privilege. All other records must be provided in the course of a review. If making a prima facie case, the Commissioner will need the following from the local authority if claiming litigation privilege for subsection 21(a) of LA FOIP: • An affidavit of documents which includes an Index of Records (Schedule) that includes: o Sufficient detail to identify the document and allow the Commissioner to determine whether a prima facie case for the claim of litigation privilege has been made. It should include: A description of the litigation. The dates of the litigation. 860 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [75]. 861 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 1441.
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