Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 20 Factors considered when determining whether a document was supplied in confidence implicitly include (not exhaustive): • What is the nature of the information. Would a reasonable person regard it as confidential. Would it ordinarily be kept confidential by the third party or the local authority.52 • Was the information treated consistently in a manner that indicated a concern for its protection by the third party and the local authority from the point at which it was supplied until the present time.53 • Is the information available from sources to which the public has access.54 • 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 third party both had the same understanding regarding the confidentiality of the information at the time it was supplied. If one party intends the information to be kept confidential but the other does not, the information is not considered to have been supplied in confidence. However, mutual understanding alone is not sufficient. Additional factors must exist in addition.55 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 supplied implicitly in confidence would not be sufficient.56 Factors to consider when determining if a document was supplied in confidence explicitly include (not exhaustive): • The existence of an express condition of confidentiality between the local authority and the third party;57 52 BC IPC Orders 331-1999 at [8], F13-01 at [23]; Office of the Prince Edward Island Information and Privacy Commissioner (PEI IPC) Order FI-16-006 at [19]; Office of the Nova Scotia Information and Privacy Commissioner (NS IPC) Review Reports 16-09 at [44], 17-03 at [34]. 53 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 54 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 55 Jacques 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]. 56 SK OIPC Review Report LA-2013-002 at [60]. 57 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].
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