Recently, the Saskatchewan Courts have issued a series of decisions providing guidance with respect to procedures and exemptions pursuant to Saskatchewan privacy legislation. The decisions arise from the request and review processes outlined in The Local Authority Freedom of Information and Protection of Privacy Act [LAFOIPA].  Pursuant to LAFOIPA, local authorities (prescribed record holders) must disclose records in response to a request, unless those records are subject to an exemption outlined in the legislation. Under the legislation, an applicant that is unhappy with how a local authority has invoked exemptions may apply to the Privacy Commissioner for a review.  After completing the review the Privacy Commissioner makes non-binding recommendations to the local authority holding the records.  A local authority can then choose whether or not to abide by those recommendations.  If the original applicant remains unhappy with the local authority’s decision, the applicant can appeal to the Court of Queen’s Bench, seeking an order that the records be released. In two Saskatchewan Court of Queen’s Bench decisions (Britto v University of Saskatchewan, 2017 SKQB 259 and Britto v University of Saskatchewan, 2018 SKQB 92), Mr. Justice Danyliuk addressed the procedure by which the Court will govern a statutory appeal, as well as the substantive application of exemptions under LAFOIPA. In the first decision, the Court affirmed that such appeals are a de novo process which owes no deference to the original recommendations of the Privacy Commissioner.  The Court determined that it must first decide, based upon the context of the appeal, whether it is necessary to review the records in question in order to conduct the appeal.  If so, the Court receives the records under seal.  Similarly, in order to receive candid submissions on the sealed records, all submissions are provided to the Court under seal, with neither appellant nor respondent reviewing the submissions of the other party. The second decision, Britto v University of Saskatchewan, 2018 SKQB 92 provided substantive analysis of the relevant exemptions.  Of note, the Court overturned a long line of decisions from the Office of the Privacy Commissioner relating to records that, if released, could be “injurious to the local authority in the conduct of existing or anticipated legal proceedings”.  Previously, the Privacy Commissioner had equated the issue of injuriousness with the question of admissibility.  In effect, the Privacy Commissioner had concluded that the release of records under LAFOIPA did not impair a party’s ability to contest their admissibility at a subsequent proceeding, particularly if the document would have to be disclosed during those legal proceedings. The Court of Queen’s Bench rejected that reasoning noting that records released under LAFOIPA are subject to absolutely no legal restrictions when it comes to their subsequent use.  In contrast, records disclosed in the context of litigation are only to be used for the purpose of the litigation, and are subject to the implied undertaking rule.  Similarly, the Privacy Commissioner’s previous approach failed to account for the detrimental impact of the forced release of documents which may otherwise be subject to litigation privilege (solicitor-client privilege was addressed in a separate decision and is discussed in a separate post: [https://www.mckercher.ca/blog/privacy-commissioner-can-only-breach-solicitor-client-privilege-as-a-matter-of-last-resort]). The decision also broadened exemptions dealing with internal advice, consultations and deliberations.  While doing so, the Court accepted that publications from the Privacy Commissioner’s office are informed and valuable tools when considering the legislation, but noted that they are not the last word in interpreting exemptions under LAFOIPA.  As such, parties responding to applications and reviews under LAFOIPA, or other access to information regimes, may wish to seek legal counsel in addition to reviewing publications from the Office of the Privacy Commissioner.

About the Author: Bob is an associate in the Saskatoon office where he focuses on education law, as well as civil and commercial litigation.  He regularly advises institutional and commercial clients on privacy matters, as well as protecting their reputation in the context of social media, and global communications.

About McKercher LLP: McKercher LLP is one of Saskatchewan’s oldest and largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made our firm rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2017). Integrity, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions. This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.