Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 53 Subsection 14(1)(c) of LA FOIP is a discretionary class-based and harm-based exemption. Meaning it contains both a class and harm based component. It permits refusal of access in situations where the release of a record could interfere with a lawful investigation or disclose information with respect to a lawful investigation. The following two-part test can be applied: 1. Does the local authority’s activity qualify as a “lawful investigation”? A lawful investigation is an investigation that is authorized or required and permitted by law.199 The local authority should identify the legislation under which the investigation is occurring. The investigation can be concluded, active and ongoing or be occurring in the future.200 It is not limited to investigations that are conducted by a local authority.201 In other words, it can include investigations conducted by other organizations (e.g., a police investigation). 2. Does one of the following exist? a) Could release of the information interfere with a lawful investigation? Section 14 of LA FOIP uses the word could versus “could reasonably be expected to” as seen in other provisions of LA FOIP. The threshold for could is somewhat lower than a reasonable expectation. The requirement for could is simply that the release of the information could have the specified result. There would still have to be a basis for asserting the harm could occur. If it is fanciful or exceedingly remote, the exemption should not be invoked.202 Interfere with includes hindering or hampering an investigation and anything that would detract from an investigator’s ability to pursue the investigation.203 Interference can occur on concluded, active, ongoing or future investigations.204 199 First defined in SK OIPC Review Report 93/021 at p. 6. Adopted in SK OIPC Review Report F-2004006 at [26] and F-2014-001 at [160]. 200 Leo v Global Transportation Hub Authority, 2019 SKQB 150 at [24]. 201 Leo v Global Transportation Hub Authority, 2019 SKQB 150 at [25]. 202 SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149]. 203 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 152. 204 Leo v Global Transportation Hub Authority, 2019 SKQB 150 at [24].
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