Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 6, Protection of Privacy. Updated 27 February 2023. 217 • Should the affected individual’s privacy rights be given preference over the public interest that exists? Local authorities should apply the “invasion-of-privacy” test to determine the level of privacy risk in the disclosure. It involves a detailed review of three interrelated risk factors that will help local authorities determine whether to rely on subsection 28(2)(n)(i) of LA FOIP. These three factors are the sensitivity of the information; the expectations of the individual; and the probability and degree of injury. In addition, local authorities should consider factors unique to their own operational context, as applicable:589 (1) Sensitivity of the information • Consider whether the type of information is of a detailed (e.g., name and address) or highly personal (e.g., health information) nature. • Evaluate the context in which the information was collected and determine whether any contextual sensitivities apply to the information. For example, a list of public servants may not be considered particularly sensitive, but that same list, if collected to identify employees having a specific illness would be considered sensitive based on the context. (2) Expectations of the individual • Evaluate the conditions under which the personal information was collected and consider what expectations the collecting institution may have established for its confidentiality, including whether the possibility of disclosure is conveyed in an applicable Privacy Notice Statement. • Consider the reasonable expectations of privacy that apply to the context in which the information was collected. To determine what constitutes a reasonable expectation of privacy, courts will look at the totality of circumstances. This could include location of collection (e.g., in a private conversation as compared to a public town hall), context of collection (e.g., in a routine application for services as compared to a letter sent to several local authorities), etc. 589 Adapted from Privacy Commissioner of Canada, Public Interest Disclosures by federal institutions under the Privacy Act, revised June 2022. Available at Public interest disclosures by federal institutions under the Privacy Act - Office of the Privacy Commissioner of Canada. Accessed December 15, 2022.
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