Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 6, Protection of Privacy. Updated 27 February 2023. 256 • Is the information available from sources to which the public has access.657 • Does the local authority have any internal policies or procedures that speak to how records or information such as that 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 providing it both had the same understanding regarding the confidentiality of the information at the time it was provided. If one party intended the information to be kept confidential but the other did not, the information is not considered to have been provided in confidence. However, mutual understanding alone is not sufficient. Additional factors must exist.658 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 provided implicitly in confidence would not be sufficient.659 Factors to consider when determining if a document was provided in confidence explicitly include (not exhaustive): • The existence of an express condition of confidentiality between the local authority and the party providing it.660 • The fact that the local authority requested the information be provided in a sealed envelope and/or outlined its confidentiality intentions to the party prior to the information being provided.661 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. Two cases came before the Court of King’s Bench for Saskatchewan dealing with subsection 30(2) of LA FOIP. Those two cases are as follows: 657 ON IPC Orders PO-2273 at p. 8, PO-2283 at p. 10. 658 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]. 659 SK OIPC Review Report LA-2013-002 at [60]. 660 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]. 661 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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