Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 5, Third Party Information. Updated 22 February 2023. 37 conducted between two or more parties for the purpose of reaching an understanding.84 It connotes a more robust relationship than “consultation”. It signifies a measure of bargaining power and a process of back-and-forth, give-and-take discussion.85 Prospective or future negotiations could be included within this exemption, if they are foreseeable.86 It may be applied even though negotiations have not yet started at the time of the access to information request, including when there has not been any direct contact with the other party or their agent. However, a vague possibility of future negotiations is not sufficient. There must be a reasonable fact-based expectation that the future negotiations will take place.87 Once a contract is executed, negotiation is concluded. The exemption would generally not apply unless, for instance, the same strategy will be used again, and it has not been publicly disclosed.88 2. Could release of the record reasonably be expected to interfere with the contractual or other negotiations of a third party? Interfere means to hinder or hamper.89 “Could reasonably be expected to” means there must be a reasonable expectation that disclosure could interfere with the contractual or other negotiations of a third party. The Supreme Court of Canada set out the standard of proof for harms-based provisions as follows: This Court in Merck Frosst adopted the “reasonable expectation of probable harm” formulation and it should be used wherever the “could reasonably be expected to” 84 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at pp. 1248 and 1249. Relied on in SK OIPC Review Report 112-2018 at [37]. 85 Gordon v. Canada (Attorney General), 2016 ONCA 625 (CanLII) at [107]. Relied on in SK OIPC Review Report 112-2018 at [37]. 86 SK OIPC Review Report 019-2014 at [27]. Equivalent provision in LA FOIP was being considered (subsection 17(1)(d)). Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 107. 87 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.11.2. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_11. Accessed July 19, 2019. 88 British Columbia Government Services, FOIPPA Policy and Procedures Manual at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/disclosure-harmful-economic-interests. Accessed July 19, 2019. Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 107. 89 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 152.
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