Office of the Saskatchewan Information and Privacy Commissioner. A Guide to Submissions. Effective Sept. 2020. Updated Dec. 2022. 5 In a review, parties are free to make representations. In normal discussion, these have been referred to as “submissions”. Normally parties make their representation in writing; however, parties are free to request an oral submission. There is also no requirement that a submission be provided. However, not providing one impacts the burden of proof. Burden of Proof FOIP provides: Burden of proof 61 In any proceeding pursuant to this Act, the burden of establishing that access to the record applied for may or must be refused or granted is on the head concerned. Similar sections are found in section 51 of LA FOIP and section 47 of HIPA. It is the obligation of the head or delegate of the public body/trustee to make their case as to why access should be refused. The purpose of the submission is to inform the Commissioner’s office about the main issues of the case and to persuade the Commissioner’s office of the correctness of the public bodies or trustees’ position. Evidence here refers to information or material that establishes fact upon which the Commissioner will base his decision. The amount or type of evidence required in order for a party to meet its burden of proof will vary dependent on the particular record, facts, issues and circumstances. If a public body/trustee fails to meet the burden of proof, the Commissioner will recommend the release of the record at issue. When it is said that a party has the “burden of proof”, what is meant is that one party has a duty in law first to bring forward evidence that a particular fact or situation exists, and then to persuade the Commissioner that the evidence meets the necessary standard of proof. For example, if a public body applies subsection 19(1)(a) of FOIP to refuse access to certain records, it falls to the public body to bring forward some evidence that disclosure could reasonably be expected to disclose a trade secret. If the public body is able to convince the Commissioner of this, the public body will have met the burden of proof. The burden is not on the applicant to establish that an exemption does not apply. The burden is on the public body/trustee. This means that it is not enough for a public body/trustee to write the Commissioner and simply say “access is denied because of section 19 [or some other section]”; rather, it is up to the public body/trustee to ‘make the case’ that a particular exemption(s) applies. That means presenting reasons why the exemption is appropriate for the
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