Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 33 • 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.107 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.108 Explicitly means that the request for confidentiality has been clearly expressed, distinctly stated or made definite. There may be documentary evidence that shows that the information was obtained with the understanding that it would be kept confidential.109 Factors to consider when determining if information was obtained in confidence explicitly include (not exhaustive): • The existence of an express condition of confidentiality between the local authority and the party that provided the information.110 • The fact that the local authority requested the information be provided in a sealed envelope and/or outlined its confidentiality intentions prior to the information being provided.111 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. Simply labelling documents as “confidential” does not, on its own, make the documents confidential (i.e., confidentiality stamps or standard automatic confidentiality statements at 107Jacques 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]. 108 SK OIPC Review Report LA-2013-002 at [60]. 109 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, pp. 104 to 105. 110 SK OIPC Review Reports F-2006-002 at [56], LA-2013-003 at [113], F-2014-002 at [47]; PEI IPC Order 03-006 at p. 5; AB IPC Orders 97-013 at [23] to [24], 2001-008 at [54]. 111 SK OIPC Review Reports F-2006-002 at [56], F-2012-001/LA-2012-001 at [29], LA-2013-002 at [49], LA-2013-003 at [113], F-2014-002 at [47]; PEI IPC Order 03-006 at p. 5; AB IPC Order 97-013 at [25].
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