REVIEW REPORT 133-2020  
Ministry of Highways (formerly Ministry of Highways and Infrastructure)  
April 5, 2022  
Summary:  
The Applicant submitted an access to information request to the Ministry of  
Highways (Highways) (formerly the Ministry of Highways and  
Infrastructure). Highways provided the Applicant with portions of the  
records. The Applicant requested the Commissioner undertake a review of  
the exemptions applied and Highways’ search efforts to locate responsive  
records. The Commissioner found that Highways did not conduct a  
reasonable search and recommended it undertake another search for the  
records. The Commissioner found that sections 19(1)(b) and 29(1) of The  
Freedom of Information and Protection of Privacy Act (FOIP) was  
appropriately applied to some portions of the record. The Commissioner  
found that the other exemptions applied by Highways did not apply to the  
remaining portions of the records. The Commissioner recommended  
Highways release the records to the Applicant, with the exception of the  
portions of the record where an exemption was found to be appropriately  
applied.  
I
BACKGROUND  
[1]  
On October 2, 2019, the Applicant submitted an access to information request to the  
Ministry of Highways (Highways) (formerly Ministry of Highways and Infrastructure) for  
records between October 1, 2017 and October 2, 2019:  
re: [specified address]  
All correspondence and records which provides any of the following information; A  
description of the various departmental uses within the building, their activities where  
they are coming from (i.e. downtown, existing industrial areas etc) and if they have any  
non-office needs (such as compound, warehousing, parking) on the property. Dates  
when the departmental use has or will commence.  
REVIEW REPORT 133-2020  
[2]  
On October 29, 2019, Highways emailed the Applicant, based on an October 28, 2019  
telephone conversation between the Applicant and Highways, requesting confirmation that  
it had accurately captured the revised scope for the request:  
Please provide records specifically containing who (which staff) is moving, what office  
are they moving from, and their branch i.e. if there is a record(s) that contain this  
information in a summary; records containing non-office use i.e. compound,  
warehousing, parking; floor plans or descriptions of floor plans prior to or after August  
2018; for the period October 1, 2017 October 2, 2019.  
[3]  
[4]  
On October 30, 2019, the Applicant responded to Highways confirming Highways had  
accurately captured the scope of the request.  
On November 14, 2019, Highways provided the Applicant with a fee estimate and  
requested a deposit of half of the total amount in order to proceed:  
… Please find below an Access to Information Cost Estimate, which summarized the  
estimate of costs.  
Type of Fee  
Time required to search for [2 of hours] x $60.00  
records $15.00/half hour  
Time required to prepare [6 of hours] $180.00  
$15.00/half hour  
~300 pages  
$0.25/page)  
Calculation of Fees  
Total Amount of Fees  
1
2
3
4
5
records for disclosure  
Photocopies  
(x $0.00  
provided electronically  
Other fees required per  
section 6 of the Regulations  
LESS:  
2
hours free  
x
$15.00/half hour  
Total amount of fees required to process access request $180.00  
[5]  
On March 26, 2020, Highways provided the actual cost of the fees associated with this file:  
Type of Fee  
Time required to search for [4 of hours] x $120.00  
records $15.00/half hour  
Time required to prepare [6 of hours] $180.00  
$15.00/half hour  
155 pages  
$0.25/page)  
Calculation of Fees  
Total Amount of Fees  
1
2
3
records for disclosure  
Photocopies  
(x $0.00  
provided electronically  
2
REVIEW REPORT 133-2020  
4
5
LESS:  
2
hours free x ($60.00)  
$15.00/half hour  
LESS DEPOSIT  
($90.00)  
Total amount of fees required to process access request $150.00  
Balance Due based on lower estimated cost of $180.00 $90.00  
[6]  
On March 30, 2020, Highways emailed the Applicant thanking them for the payment of  
the balance due. Highways released 155 pages of responsive records (a 107 page record  
and a 48 page record) to the Applicant, withholding some portions of the records pursuant  
to sections 17(1)(a), 19(1)(b) and 29(1) of The Freedom of Information and Protection of  
Privacy Act (FOIP).  
[7]  
[8]  
On May 27, 2020, the Applicant submitted a request for review to my office.  
On June 2, 2020, my office notified both parties of my intention to undertake a review of  
the application of section 29(1) of FOIP to the 48 page record, as well as search efforts to  
locate responsive records as the Applicant believed additional records exist involving  
[name of Highways’ employee] which had not been located or provided.  
[9]  
On the same day, the Applicant responded expanding the review to consider the application  
of all exemptions, not just section 29(1) of FOIP, to both the 48 page record and the 107  
page record. As such, my office advised both parties that the review would consider the  
application of all exemptions claimed by Highways to redact portions of the responsive  
records. As such, my office sent updated notification emails advising the review would  
consider the Applicant of sections 17(1)(a), 19(1)(b) and 29(1) of FOIP, as well as portions  
marked as non-responsive.  
[10] On June 9, 2020, Highways provided my office with contact information for the third  
parties and my office notified the third parties of the review on June 10, 2020.  
[11] On December 15, 2020, Highways released some portions of the record it had previously  
withheld in part from the Applicant. In the letter advising the Applicant of the additional  
portions of records it was releasing, Highways also advised the Applicant that it was raising  
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REVIEW REPORT 133-2020  
additional exemptions to continue to withhold other portions of the record. Highways  
advised the exemptions applied to withhold portions of the record were sections 16(1),  
17(1)(a), 17(1)(b)(i), 17(1)(c), 18(1)(b), 19(1)(b), 22(a) and 29(1) of FOIP. As well, in a  
supplementary submission to my office related to the 48 page record, Highways applied  
section 15(1)(m) of FOIP to withhold portions of the record.  
II  
RECORDS AT ISSUE  
[12] Initially Highways had provided a 107 page record; however, as was noted in my office’s  
notification email, the review involved the 107 page record, a 48 page record and any other  
records that Highways withheld in full from the Applicant. On November 3, 2021,  
Highways provided my office with a copy of the 48 page record. However, Highways took  
the position that the Commissioner does not have jurisdiction to review the 48 page record  
and provided a supplementary submission on this position, which I will consider later in  
this Report. On November 8, 2021, Highways advised that while exemptions were applied  
to some information, there were no records withheld in full from the Applicant.  
[13] I will refer to the 107 page record as Package A and the 48 page record as Package B.  
Highways did release some of the pages of these two packages of records in full.  
[14] For Package A, pages 1, 2, 3, 5, 6, 7, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26,  
27, 28, 30, 31, 32, 34, 36, 37, 40, 56, 57, 60, 65, 66, 67, 68, 70, 71, 72, 73, 74, 77, 79, 80,  
81, 82, 83, 84, 86, 87, 92, 95, 96, 97, 98, 99, 100, 101, 102, 105, 106 and 107 were released  
in full to the Applicant. As such, these pages of the record are not at issue in this review.  
[15] While my office was reviewing the records in Package A, it was found that a few  
attachments to emails in this record were not provided to my office. My office followed up  
with Highways on February 7, 2022, and Highways acknowledged that three attachments  
totalling seven pages had been overlooked when identifying the responsive records.  
Highways provided my office with copies of the missing attachments and advised it would  
release these records in full to the Applicant. Additionally, Highways chose to release pages  
29 and 64 of Package A of the record. Highways also reduced the redactions applied to  
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REVIEW REPORT 133-2020  
page 75 and dropped all exemptions, except the third-party exemption applied to a portion  
of page 78 of Package A. Highways released these pages of the record to the Applicant on  
February 24, 2022. As such, the pages of the record that were released in full are not at  
issue in this review. That leaves 44 pages that were withheld in part from the Applicant  
from Package A.  
[16] For Package B, pages 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 21 and 35 were  
released in full to the Applicant. That leaves 30 pages that were withheld in part from the  
Applicant from Package B.  
[17] I note that the records provided to my office contain the records in full, and a redacted  
version that uses “white space redaction”.  
[18] “White space redaction” is where software removes the content of a record in such a way  
that it renders the redacted content indistinguishable from the blank background of the  
document. As discussed in my office’s Review Report 025-2020 and Review Report 127-  
2020, white space redaction lacks specificity because when reviewing the responsive  
pages, an applicant cannot tell if the white space accounts for a missing line, paragraph,  
table, image etc. or if the page was naturally left blank. The preference is black-out or grey-  
out redacting, which allows sufficient visual context to indicate the length and general  
nature of the information (e.g. chart, column, list, sentence or paragraph) (Guide to FOIP,  
Chapter 3: “Access to Records”, updated: June 29, 2021 (Guide to FOIP, Ch. 3) at pages  
46 to 48).  
[19] In the future, Highways should use black-out or grey-out redacting when processing  
records. For assistance with severing, Highways can review my office’s webinar: Modern  
Age Severing Made A Lot Easier.  
[20] The index of records below identifies the remaining pages that were withheld in part that  
will be considered in this review:  
5
REVIEW REPORT 133-2020  
Package Record  
Page  
Description  
Exemptions Applied  
Numbers of Record  
A
A
A
A
A
A
A
1
Page 4  
Email  
Email  
Email  
Non-Responsive; Sections 17(1)(a)  
and 17(1)(b)(i) of FOIP  
Non-Responsive; Sections 17(1)(a)  
and 17(1)(b)(i) of FOIP  
Non-Responsive; Section  
17(1)(b)(i) of FOIP  
2
Pages 8  
and 9  
Page 13  
3
5
Pages 24 Attachment Section 29(1) of FOIP  
and 25  
Page 33  
to Email  
Email  
9
Non-Responsive; Section  
17(1)(b)(i) of FOIP  
Non-Responsive; Sections 16(1)  
and 17(1)(a) of FOIP  
Pages 38 and 39: Non-Responsive;  
Section 17(1)(b)(i) of FOIP  
10  
11  
Page 35  
Email  
Pages 38, Email and  
39 and 41 one  
to 54  
attachment  
Pages 41 to 54: Sections 19(1)(b)  
and 29(1) of FOIP  
A
A
A
12  
14  
15  
Page 55  
Email  
Non-Responsive; Sections 17(1)(a)  
and 17(1)(b)(i) of FOIP  
Non-Responsive; Section  
17(1)(b)(i) of FOIP  
Pages 58 Email  
and 59  
Pages 61 Attachment Pages 61 and 62: Non-Responsive;  
to 63  
to Email  
Sections 17(1)(b)(i), 17(1)(c) and  
18(1)(b) of FOIP  
Pages 63: Non-Responsive;  
Sections 16(1), 17(1)(b)(i), 17(1)(c)  
and 18(1)(b) of FOIP  
A
A
18  
19  
Page 69  
Email  
Non-Responsive; Section  
17(1)(b)(i) of FOIP  
Pages 75 Email  
and 76  
Page 78  
Page 85  
Non-Responsive; Sections 17(1)(a)  
and 17(1)(b)(i) of FOIP  
Section 19(1)(b) of FOIP  
Non-Responsive; Section 29(1) of  
FOIP  
A
A
20  
23  
Email  
Email  
A
A
A
24  
25  
26  
Pages 88 IBC Update Non-Responsive; Section 29(1) of  
to 90  
FOIP  
Page 91  
Email  
Non-Responsive; Sections  
17(1)(b)(i) and 22(a) of FOIP  
Page 93: Non-Responsive  
Pages 93, Email and  
94, 103  
and 104  
two  
attachments Page 94: Non-Responsive; Section  
17(1)(b)(i) of FOIP  
6
REVIEW REPORT 133-2020  
Package Record  
Page  
Description  
Exemptions Applied  
Numbers of Record  
Pages 103 and 104: Section 29(1)  
of FOIP  
B
B
1
2
Page 1  
Email and  
three  
attachments  
Section 29(1) of FOIP  
Pages 17, Email and  
Pages 17: Section 29(1) of FOIP  
19, 20  
and 22  
two  
attachments Pages 19, 20 and 22: Section  
17(1)(a) of FOIP  
B
B
3
4
Page 23  
Page 24  
Page 25  
Pages 26 Email  
to 28 thread  
Pages 29 Email and  
Email  
thread  
Email  
thread  
Email  
Section 29(1) of FOIP  
Section 29(1) of FOIP  
B
B
5
6
Section 29(1) of FOIP  
Section 29(1) of FOIP  
B
7
Page 29: Section 29(1) of FOIP  
to 31  
two  
attachments Pages 30 and 31: Sections 15(1)(m)  
and 17(1)(a) of FOIP  
B
B
B
8
9
10  
Page 32  
Page 33  
Page 34  
Email  
Email  
Email  
thread  
Email  
thread  
Email  
thread  
Email  
thread  
Email  
Email  
Section 29(1) of FOIP  
Section 29(1) of FOIP  
Section 29(1) of FOIP  
B
B
B
11  
12  
13  
Page 36  
Page 37  
Page 38  
Section 29(1) of FOIP  
Section 29(1) of FOIP  
Section 29(1) of FOIP  
B
B
B
14  
15  
16  
Page 39  
Page 40  
Pages 41 Email  
to 44 thread and  
three  
Section 29(1) of FOIP  
Section 29(1) of FOIP  
Page 41: Section 29(1) of FOIP  
Pages 42 and 43: Sections 15(1)(m)  
attachments and 17(1)(a) of FOIP  
Page 44: Section 17(1)(a) of FOIP  
Page 45: Sections 19(1)(b) and  
29(1) of FOIP  
B
B
17  
18  
Pages 45 Email  
and 46  
thread and  
one  
attachment Page 46: Sections 15(1)(m) and  
17(1)(a) of FOIP  
Page 47  
Email  
Section 29(1) of FOIP  
7
REVIEW REPORT 133-2020  
Package Record  
Page  
Description  
Exemptions Applied  
Section 29(1) of FOIP  
Numbers of Record  
Page 48  
B
19  
Email  
thread  
III  
1.  
DISCUSSION OF THE ISSUES  
Do I have jurisdiction?  
[21] Highways is a “government institution” pursuant to section 2(1)(d)(i) of FOIP. Therefore,  
I have jurisdiction to conduct this review.  
[22] Further, Highways identified Shindico Realty Inc., Stantec Consulting Ltd. and Kreate  
Architecture and Design Ltd. as third parties. Each of these three parties qualifies as a “third  
party” as defined by section 2(1)(j) of FOIP.  
[23] As noted earlier, Highways took the position that I do not have jurisdiction to review the  
Package B of the record (the 48 page record) and provided a supplementary submission on  
this position. I will now consider Highwaysposition that my office does not have authority  
to review Package B of the record. Package B is the 48 page record that Highways withheld  
from the Applicant in part.  
[24] In its submission, Highways indicated that it “did not anticipate that [my office] would  
include… the 48 pages of records” in this review. However, in my office’s notification  
email to Highways on June 2, 2020, it stated that “the applicant has specified [they are]  
only interested in the exemptions applied to pages 1 [to] 48.” On the same day they received  
the notification, the Applicant contacted my office to clarify that they were interested in  
exemptions applied to all responsive records. In a revised notification email, my office  
advised Highways that, “this would include exemptions applied to the 107 page record, the  
48 page record, and any record that was withheld in full…” It is clear the 48 page record  
would be included in this review as it was clearly referenced in both notification emails.  
8
REVIEW REPORT 133-2020  
[25] Highways also argued that because my office had not proceeded with a review of an earlier  
access to information decision that involved these records, that my office did not have the  
authority to review any future access decisions made regarding this record in subsequent  
access to information requests.  
[26] In that particular case, involving the same 48 pages noted above, the Applicant requested  
a review of the exemptions applied by Highways on April 8, 2020. However, in that  
instance, pursuant to section 49(2) of FOIP, my office was unable to proceed with a review  
as more than a year had passed since Highways provided its April 3, 2019 response to the  
Applicant’s access request.  
[27] Subsequently, the Applicant submitted another access to information request to Highways  
requesting the same 48 page record, as well as other records, which Highways refused to  
process. This resulted in another request for review to my office which was resolved in my  
office’s Review Report 130-2020. In that report, Highways argued that it would be  
“procedurally unfair to provide a response and allow the Applicant to again have a one year  
period to request a review” of another access to information request from the Applicant  
that included this same 48 page record. As noted in that report, there is no provision in  
FOIP that allows a government institution with the ability to refuse to process requests  
because the responsive records overlap with previous requests. Additionally, I found that  
there is no provision in FOIP that prevents an Applicant from resubmitting a request, or  
submitting a request for the same records they had previously requested and then  
subsequently requesting a review if they are dissatisfied with the response (provided this is  
done within one year of the response). Further, Highways had the ability to apply to the  
Commissioner to disregard an access to information request pursuant to section 45.1 of  
FOIP. However, Highways did not make an application to disregard the request.  
[28] When Highways processed the Applicant’s current access to information request, it issued  
a fee estimate to the Applicant. The Applicant paid the deposit to proceed with the  
processing of the request. Once Highways had completed its processing of the request, it  
requested the Applicant pay the other half of the fee estimate in order for Highways to  
release 155 pages of responsive records, subject to exemptions. In its March 30, 2020,  
9
REVIEW REPORT 133-2020  
email to the Applicant releasing these records (the 107 page record and the 48 page record,  
for a total of 155 pages) Highways stated, please find attached records responsive to  
your request”. [Emphasis added]  
[29] The supplementary submission provided by Highways claims this review is a revisitation  
of an issue and did not uphold the fairness and integrity of the access to information  
process. However, as noted above, I have not previously considered the application of any  
exemptions to this 48 page record.  
[30] An important distinction to be noted when dealing with access requests is that it is not the  
access request that is the subject of the review by my office, but rather it is a public body’s  
response to the access request that is under review. This was a position taken by the Alberta  
Office of the Information and Privacy Commissioner (AB IPC) in Order F2011-D-002  
which stated:  
[para 19] Section 65 of the FOIP Act sets out the issues for which a review may be  
requested. The relevant provision in this case is s. 65(1):  
65(1) A person who makes a request to the head of a public body for access to a  
record or for correction of personal information may ask the Commissioner to  
review any decision, act or failure to act of the head that relates to the request.  
While an applicant must have made an access request to fall under section 65(1),  
only the decisions, acts or failures to act made in response to the request are the  
subject of a request for review. In other words, the access request itself is not the  
subject of a review under section 65(1), but rather, the decisions, acts, or failures  
to act in responding to that access request. While I agree with the Public Body that  
the access request giving rise to the Public Body’s letter of May 14, 2010 is the same  
access request that gave rise to my review of the Public Body’s decisions, acts, or  
failures to act in responding to the access request in Order F2009-024, I cannot find  
that my duties under the FOIP Act have been performed, finally, by issuing that order,  
unless I find that the decisions, acts, or failures to act of which the Applicants have  
requested review in this inquiry are the same as those that were disposed of by Order  
F2009-024.  
[Emphasis added]  
[31] FOIP does not restrict an Applicant from applying for access to the same records more than  
once. My office could, upon application for a review from an Applicant, review the  
10  
REVIEW REPORT 133-2020  
government institution’s actions vis-à-vis granting access to the same records in a  
subsequent access request.  
[32] The legislature was aware that individuals may make applications to government  
institutions for the same records on repeated occasions and introduced section 45.1 in FOIP  
to address this potential problem. Multiple applications for the same records could be  
denied upon application from the head of the government institution under section 45.1 of  
FOIP. The Commissioner could then exercise their discretion to permit the government  
institution to disregard the access request.  
[33] Highways has not submitted an application to disregard this access request. The ABIPC  
decision cited above shows that the door is open to review a government institution’s  
response to an access request even when the records being requested are the same as those  
in a previous request.  
[34] There is nothing in FOIP that specifically speaks to the finality of a decision of the  
Commissioner, so it is arguable that in the absence of express words prohibiting  
reconsideration of a decision that I am free to do so.  
[35] Justice Cullen of the Federal Court in Chan v. Canada (Ministry of Citizenship and  
Immigration), 136 DLR (4th) 433 had the following to say in allowing an immigration  
officer to reconsider a matter that had already been decided:  
Does the Immigration Act contemplate that a visa officer can reconsider his decision?  
There is nothing in the statute that deals with whether a visa officer may review  
decisions already made. I would take this silence, however, not to be a prohibition  
against reconsideration of decisions. Rather, I think that the visa officer has jurisdiction  
to reconsider his decision, particularly when new information comes to light.  
[36] In the previous requests for review that involved the 48 page record, my office had not  
conducted a review of the exemptions Highways relied on to redact portions of the record.  
In this case, the Applicant submitted their request for review to my office within the one  
year review period, including the request to review the exemptions claimed by Highways  
to redact portions of the 48 page record. My office had not previously received arguments  
11  
REVIEW REPORT 133-2020  
from Highways to support the exemptions claimed; therefore, this is new information for  
my office to consider in the review of this issue.  
[37] Highways has also taken the position that when my office found that we could not review  
the previous request for review as it was outside of the one-year review period, that my  
office was “effectively recognizing the principle of functus officio.” Highwayssubmission  
provides that, functus officio brings finality to decisions by preventing a decision-maker  
from reconsidering a matter in the same forum in which the original decision was made.”  
[38] The Canadian Bar Review Doctrine of Functus Officio: The Changing Face of Finality’s  
Old Guard by Anna S.P. Wong. Ms. Wong has proposed a more modern manner in which  
to determine if the doctrine should apply, but it has not been tested by the courts.  
[39] Ms. Wong analyzed the post-Chandler state of the law as it applies to functus officio and  
concluded her analysis by proposing the following manner for determining if the doctrine  
should apply in any given circumstance:  
A balancing of factors is useful for realizing justice based on the context. It provides  
the pliability needed to account for different fact situationsof which there will be  
many given the diversity of administrative decision- making processeswithout  
sacrificing the benefits of a structured inquiry. It brings discipline to the exercise of  
flexibility.  
Step One: Prerequisites  
When faced with a situation that involves, or potentially involves, the functus doctrine,  
the first step should be to determine whether the prerequisites for doctrine’s application  
are present. To trigger functus officio, there must be a final and valid decision. If there  
is no final and valid decision, then there is no ground for functus officio to burrow and  
the inquiry ends here. If there is such a decision, then onto the second step we go.  
Step Two: Existing Exceptions  
The second step is concerned with whether any of the existing exceptions to functus  
officio apply. According to the majority in Chandler, there are three available  
exceptions:  
the common-law exception permitting correction of clerical mistakes or errors  
arising from an accidental slip or omission;  
12  
REVIEW REPORT 133-2020  
the common law exception for errors in expressing the manifest intention;  
the statutory exception to the functus doctrine enacted by way of statutory  
provisions that vest the administrative decision-maker with the jurisdiction to  
reconsider its decision.  
Functus officio will not apply should any of the exceptions be made out on the facts.  
Step Three: Exercise Flexibility to Not Apply Functus Officio  
The third step involves determining whether, despite the existence of a final and valid  
decision and the non-engagement of exceptions, operation of functus officio should  
nonetheless be suspended to enable reconsideration of the decision by the decision-  
maker.  
This determination is to be made upon balancing an open-ended list of factors,  
including:  
whether the decision is amenable to appeal or judicial review;  
whether there are any errors in the decision, and the impact of the errors on the  
outcome;  
circumstances giving rise to the request for reconsideration, including fraud and  
newly discovered evidence that could have reasonably affected the outcome of  
the decision;  
whether there was any avoidable delay in the request for reconsideration;  
the extent to which any party has relied and acted on the decision;  
balancing between prejudice to the parties from reopening the decision and  
prejudice from not allowing reconsideration. How the factors will be weighed  
in a given case will depend on the circumstances of the case, and so, remain an  
open question to be addressed in context. The objective of the weighing exercise  
is to see whether the needs of fairness outweigh the need for finality in a  
particular case. If so, then justice requires deviation from the usual operation of  
functus officio.  
[40] The doctrine of functus officio allows for discretion and flexibility. In this case, as the 48  
page record was released to the Applicant in response to their access to information request  
and my office has not previously had the opportunity to consider Highways’ decisions to  
withhold portions of the records and issue findings and recommendations on this issue. As  
such, I find that I have jurisdiction to undertake this review.  
[41] As such, I will review the exemptions claimed to withhold portions of the 107 page record,  
Package A, and the 48 page record, Package B, and I will proceed with my review.  
13  
REVIEW REPORT 133-2020  
[42] I do, however, want to reiterate that the Applicant should proceed with caution as  
submitting multiple requests for the same records strains public body resources and time  
and may result in an application to disregard access requests. However, if the request was  
previously processed, the work is already complete, so may not require any further effort.  
2.  
Did Highways perform a reasonable search for records?  
[43] The Applicant requested my office conduct a review of search efforts as they were of the  
opinion that additional responsive records existed, but were not identified or provided. In  
an email to my office, the Applicant stated:  
This record [the 48 page record] was recently provided to me as part of 155 Pages of  
records for Access to Information Request #19-025G [Highways’ file number for the  
access request at issue in this review] for which I paid the Ministry of Highways and  
Infrastructures $180 as per their fee estimate Access to Information Request #19-025G  
dated November 14, 2019.  
The attached record has already been provided to me twice by the Ministry in two prior  
Access to Information requests so why do they not want to provide it here when it is  
certainly relevant. I also believe there are additional records involving [name of  
Highways employee] and [specified address] which have not yet been provided to me  
thus also another purpose of this request.  
[44] Highways’ submission provided the following regarding its efforts to locate the responsive  
records:  
Records of the following individuals were searched:  
[Name of HighwaysEmployee A], Executive Director, Corporate Services  
[Name of HighwaysEmployee B], Director, Financial Services Branch, Corporate  
Services Director responsible for Accommodations  
[Name of HighwaysEmployee C], Executive Director, Southern Region Operations  
[Name of Employee D], Regional Administration Manager, Southern Region  
Operations, Project Lead on building move project  
[Name of Employee E], Retired former Regional Administration Manager, Southern  
Region Operations  
The Corporate Services Division with the Ministry of Highways portfolio is  
responsible for accommodations management (building, office space etc.). The  
Executive Director of the Division and the Director of Financial Services are the project  
sponsor and project manager. Southern Region Operations, Executive Director and  
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REVIEW REPORT 133-2020  
Regional Administration Manager, are the project leads. The Ministry of Highways  
asked these individuals to conduct a search for responsive records.  
[45] The following are guidelines my office uses when reviewing a public body’s search efforts  
for records responsive to a request:  
An IPC review involving search efforts can occur in two situations:  
the government institution issued a section 7 response indicating records do not  
exist; or  
the applicant believes there are more records than what the government  
institution provided.  
The focus of an IPC search review is whether the government institution conducted a  
reasonable search. As noted above, a reasonable search is one in which an employee,  
experienced in the subject matter, expends a reasonable effort to locate records which  
are reasonably related to the request. A reasonable effort is the level of effort you would  
expect of any fair, sensible person searching areas where records are likely to be stored.  
What is reasonable depends on the request and related circumstances.  
It is difficult to prove a negative, therefore FOIP does not require a government  
institution to prove with absolute certainty that records do not exist.  
When a government institution receives a notification letter or email from the IPC  
requesting details of its search efforts, some or all of the following can be included in  
the government institutions’ submission (not exhaustive).  
Outline the search strategy conducted:  
For personal information requests explain how the individual is involved with  
the government institution (i.e. client, employee, former employee etc.) and  
why certain departments/divisions/branches were included in the search.  
For general requests tie the subject matter of the request to the  
departments/divisions/branches included in the search. In other words, explain  
why certain areas were searched and not others.  
Identify the employee(s) involved in the search and explain how the  
employee(s) is experienced in the subject matter.  
Explain how the records management system is organized (both paper &  
electronic) in the departments/divisions/branches included in the search:  
Describe how records are classified within the records management system. For  
example, are the records classified by:  
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REVIEW REPORT 133-2020  
- alphabet  
- year  
- function  
- subject  
Consider providing a copy of your organization’s record schedule and screen  
shots of the electronic directory (folders & subfolders).  
If the record has been destroyed, provide copies of record schedules and/or  
destruction certificates.  
Explain how you have considered records stored off-site.  
Explain how records that may be in the possession of a third party but in the  
government institution’s control have been searched such as a contractor or  
information management service provider.  
Explain how a search of mobile electronic devices was conducted (i.e. laptops,  
smart phones, cell phones, tablets).  
Explain which folders within the records management system were searched  
and how these folders link back to the subject matter requested. For electronic  
folders indicate what key terms were used to search if applicable.  
Indicate the calendar dates each employee searched.  
Indicate how long the search took for each employee.  
Indicate what the results were for each employee’s search.  
Consider having the employee that is searching provide an affidavit to support  
the position that no record exists or to support the details provided. For more  
on this, see the IPC resource, Using Affidavits in a Review with the IPC  
available on the IPC website.  
The above list is meant to be a guide. Each case will require different search strategies  
and details depending on the records requested.  
(Guide to FOIP, Ch. 3, pp. 8 to 10)  
[46] Highwayssubmission lacked detail on when each employee searched, where they  
searched, or what keywords were used for the search for records. Additionally, it appears  
that the information regarding how records were searched for only applied to Package A  
of the Records, not Package B. In Highways’ submission, it stated that the records in  
Package B were provided to the Applicant as a “courtesy copy”. It does not appear that  
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REVIEW REPORT 133-2020  
Highways conducted a search for records responsive to the Applicant’s specific wording  
of this request. Highways simply forwarded a copy of a record that it had found as  
responsive to a similar request it had received.  
[47] I find that Highways has not provide sufficient detail of its search efforts that a reasonable  
search was conducted.  
[48] I recommend Highways conduct another search for all records requested by the Applicant  
within 30 days of the issuance of this Report and issue a response that includes details of  
its search efforts. This should be provided to my office and the Applicant.  
3.  
Is there information in the records that is not responsive to the access request?  
[49] When a government institution receives an access to information request, it must determine  
which information is responsive to the access request. Responsive means relevant. The term  
describes anything that is reasonably related to the request. It follows that any information  
or records that do not reasonably relate to an applicant’s request will be considered “not  
responsive” (Guide to FOIP, Ch. 3, p. 11).  
[50] Highways identified some portions of the information in the records as non-responsive on  
the following pages of the records:  
Package A  
Record 1, Page 4  
Record 2, Pages 8 and 9  
Record 3, Page 13  
Record 9, Page 33  
Record 10, Page 35  
Record 11, Pages 38 and 39  
Record 12, Page 55  
Record 14, Pages 58 and 59  
Record 15, Pages 61 to 63  
Record 18, Page 69  
Record 19, Pages 75 and 76  
Record 23, Page 85  
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REVIEW REPORT 133-2020  
Record 24, Pages 88 to 90  
Record 25, Page 91  
Record 26, Pages 93 and 94  
[51] Highwayssubmission provided the following arguments to support its position non-  
responsive records should be exempt from release:  
25. Part II of [FOIP] sets up two steps in providing access to records. First, pursuant to  
ss. 6(1)(b), the Applicant must “specify the subject matter of the record requested with  
sufficient particularity as to time, place and event to enable an individual familiar with  
the subject matter to identify the record”. This sets the boundary for the request. The  
government institution then identifies the records that fit those parameters or are  
“responsive” to the request. Second, once the responsive records are identified, the  
government institution may or must apply exemptions to them, depending upon  
whether the exemptions are discretionary or mandatory. There is no requirement in the  
Act to provide non-responsive information to the Applicant or to apply exemptions to  
records that are not within the parameters identified by the Applicant. These two steps  
prevent fishing expeditions through overly broad and unwieldy requests.  
26. This was implicitly recognized by the Court in Hennessey v Eastern Regional  
Integrated Health Authority, 2013 NLTD(G) 20. In that case, the Court reviewed a  
number of records, indicating whether the exemptions claimed applied. At paragraph  
40, the Court said, “Pages 118-122 are neither responsive nor relevant and are therefore  
exempt from disclosure. Similarly, the redactions on pages 123, 124 and 125 are non-  
responsive and irrelevant and exempt from disclosure for those reasons.” Note that the  
Court found redactions in records, as well as whole records, to be non-responsive and  
exempt from disclosure.  
27. In determining which records or portions of records are responsive, Highways is  
following the parameters identified by the Applicant (see paragraph 3 above). The  
Applicant has requested records specifically containing the following, with respect to  
[specified property]:  
who (which staff) is moving, what office are they moving from, and their branch  
i.e. if there is a record(s) that contain this information in a summary;  
non-office use (i.e. compound, warehousing, parking);  
floor plans or description of floor plans prior to or after August 2018.  
The time frame is a two-year period: October 1, 2017 to October 2, 2019.  
[52] Based on a review of the portions of the record Highways marked as non-responsive relates  
to a variety of aspects of the specified property. This includes discussions to finalize  
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REVIEW REPORT 133-2020  
decisions on spaces and construction, accommodation costs related to the property, and  
staff requirements for their workspaces in the property. While Highways has taken the  
position that the information is not responsive, the information all relates to the specified  
property.  
[53] The Supreme Court of Canada has interpreted access to information laws as quasi-  
constitutional. It follows that as fundamental rights, the rights to access and to privacy are  
interpreted generously, while the exceptions to these rights must be understood strictly  
(Guide to FOIP, Ch. 3, p. 3).  
[54] When a government institution receives an access to information request, it must  
determine, which information is responsive to the access request. “Responsive” means  
relevant. The term describes anything that is reasonably related to the request. It follows  
that any information or records that do not reasonably relate to an applicant’s request will  
be considered “not responsive” (Guide to FOIP, Ch. 3, p. 11).  
[55] As noted at paragraph [210] of my office’s Review Report 132-2020, even if portions of  
the record are, “clearly separate and distinct and entirely unrelated to the access request…  
I encourage [public bodies] to release non-responsive records (subject to exemptions)…”  
[56] In this case, the information is related to the specified property that the Applicant was  
seeking information regarding. While Highways has indicated that some of the information  
on these pages of the records are not specifically responsive to the clarified scope of the  
Applicant’s request, other information on these pages were found to be responsive. It is  
clear from the wording of the Applicant’s initial access to information request that the  
Applicant was seeking a broad range of information about this property. As the Applicant  
did clarify their request, Highways does not have to conduct a search for that broad range  
of information. However, if there is other information relating to this property that is on  
the pages that Highways found to contain responsive information, I would encourage  
Highways to release this information, subject to exemptions. I will consider the exemptions  
Highways applied to these portions of the record in this report.  
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REVIEW REPORT 133-2020  
[57] There is one exception - record 23, page 85 - the information redacted relates to an  
employee being away from the office does not specifically relate to the property at issue.  
However, as noted above regarding non-responsive information, even if information is  
clearly separate and distinctly, public bodies are encouraged to release the information,  
subject to exemptions. Highways also applied section 29(1) of FOIP to this information. I  
will consider the application of this exemption to the information in this Report.  
[58] Highways has also applied a variety of exemptions to the portions of the record it claimed  
as non-responsive. I will consider the application of those exemptions to the severed  
information in this Report.  
4.  
Did Highways properly apply section 22(a) of FOIP?  
[59] Highways withheld a portion of record 25, page 91 of Package A pursuant to section 22(a)  
of FOIP.  
[60] Section 22(a) of FOIP provides:  
22 A head may refuse to give access to a record that:  
(a) contains any information that is subject to any privilege that is available at law,  
including solicitor-client privilege;  
[61] Section 22(a) of FOIP is a discretionary, class-based exemption. It permits refusal of access  
in situations where a record contains information that is subject to any legal privilege,  
including solicitor-client privilege (Guide to FOIP, Chapter 4: “Exemptions from the Right  
of Access”, updated: April 30, 2021 (Guide to FOIP, Ch. 4) at page 255).  
[62] Highways’ submission provided that this information describes a communication between  
a solicitor and client.  
[63] My office uses the following three-part test to determine if section 22(a) of FOIP applies:  
1. Is the record a communication between solicitor and client?  
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REVIEW REPORT 133-2020  
2. Does the communication entail the seeking or giving of legal advice?  
3. Did the parties intend of the communication to be treated confidentially?  
(Guide to FOIP, Ch. 4, pp. 258 264)  
[64] Page 91 is an email from Shindico to two Highwaysemployees and a gmail.com email  
address. Highways released portions of this email. Highways relied on section 22(a) of  
FOIP to sever one of the portions of this email. I appreciate that Highways provided my  
office with a copy of the record where it claimed section 22(a) of FOIP.  
[65] Highways’ submission provides that the information is “a description of a communication  
between a solicitor and client… therefore presumed to be prima facie confidential…”.  
[66] While the email is not between solicitor and client, in my office’s Review Report 079-  
2018, I provided the following regarding the continuum of legal advice:  
[64] In Review Report 005-2017; 214-2015 PART II, I discussed the continuum of  
legal advice. I noted that documents that are not actually a communication between a  
solicitor and a client may be part of the continuum of legal advice, or reveal information  
subject to solicitor-client privilege. I listed the following examples that could qualify  
as part of the continuum:  
A discussion between two public officials about how to frame the question that  
is to be asked of the lawyer;  
Written communications between officials or employees of a public body, in  
which they quote or discuss the legal advice given by the public body’s  
solicitor;  
Communications discussing the application of legal advice given by a solicitor;  
An employee’s notes regarding a solicitor’s legal advice, and comments on that  
advice;  
Notes “to file” in which legal advice is quoted or discussed; and  
Solicitors’ briefing notes and working papers that are directly related to the  
seeking or giving of legal advice.  
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REVIEW REPORT 133-2020  
[67] Highways submission also claims common interest privilege between the parties on the  
communication as, “Shindico and Highways had a common interest in the same  
transaction” relating to the leasing of the property at issue.  
[68] In my office’s Review Report 205-2019, 255-2019, my office referenced the two-part test  
established by my office for common interest privilege at paragraph [153] as follows:  
1. The record contains information that is subject to any privilege that is available at  
law; and  
2. The parties who share that information must have a “common interest”, but not  
necessarily an identical interest, in the information.  
[69] Based on a review of the portion of the record, the portions withheld does not appear to be  
discussing legal advice. It appears Shindico is providing an update on the status of an  
agreement. The communication is not between solicitor and client and the email does not  
appear to contain any legal advice. Finally, Highways’ submission did not address the  
gmail.com email address that was also included on the communication. It is not clear who  
the email address belongs to. It is not clear if there was any intention for the parties to keep  
the communication confidential and as the submission did not address the gmail.com email  
address, I cannot be persuaded that the information remained between the parties or that all  
parties had a common interest.  
[70] As such, I do not find that the information would qualify as solicitor-client or common  
interest privilege. Section 22(a) of FOIP does not apply. See Appendix A for details.  
5.  
Did Highways properly apply section 16(1) of FOIP?  
[71] Highways withheld portions of record 10, page 35 and record 15, page 63 of Package A  
pursuant to section 16(1) of FOIP.  
[72] Section 16(1) of FOIP provides as follows:  
16(1) A head shall refuse to give access to a record that discloses a confidence of  
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REVIEW REPORT 133-2020  
the Executive Council, including:  
(a) records created to present advice, proposals, recommendations, analyses or  
policy options to the Executive Council or any of its committees;  
(b) agendas or minutes of the Executive Council or any of its committees, or records  
that record deliberations or decisions of the Executive Council or any of its  
committees;  
(c) records of consultations among members of the Executive Council on matters  
that relate to the making of government decisions or the formulation of government  
policy, or records that reflect those consultations;  
(d) records that contain briefings to members of the Executive Council in relation  
to matters that:  
(i) are before, or are proposed to be brought before, the Executive Council or  
any of its committees; or  
(ii) are the subject of consultations described in clause (c).  
[73] Section 16(1) of FOIP is a mandatory class-based provision. Sections 16(1)(a) through (d)  
are not an exhaustive list. Therefore, even if none of the sections are found to apply, the  
introductory wording of section 16(1) must still be considered (Guide to FOIP, Ch. 4, p.  
93).  
Package A, Record 10, Page 35  
[74] The information withheld in record 10, page 35 of Package A is a portion of a sentence in  
an email. The email appears to discuss information that had been included in a document.  
The redacted portion simply identifies the type of document.  
[75] Highways’ submission provides as follows:  
On page 35It is submitted that disclosure of this information would reveal  
information about the analyses used in documents prepared for Cabinet discussions and  
decision-makingThis is confirmed in clause 16(1)(a) which provides as one example  
of a Cabinet confidence “records created to present advice, proposals,  
recommendations, analyses or policy options to the Executive Council or any of its  
committees”. Because s. 16(1) is a mandatory exemption, this small redaction on page  
35 has been made.  
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REVIEW REPORT 133-2020  
[76] However, Highways has not provided me with any documentation to support its assertion  
that this document did contain the information discussed in the email, nor that the document  
qualified as a cabinet confidence. I am not persuaded that the information qualifies as a  
cabinet confidence. As such, I find that section 16(1) of FOIP does not apply. See Appendix  
A for details.  
Package A, Record 15, Page 63  
[77] The information in record 15, page 63 of Package A that was withheld pursuant to section  
16(1) of FOIP is the third redaction on this page of the record. The redacted information is  
a portion of a sentence related to a change in timeline.  
[78] Highways’ submission provides as follows:  
On page 63 a redaction has been made forinformation about a matter going before  
a Cabinet Committee and the timing of deliberations of the Cabinet Committee.  
[79] The portion of this sentence withheld does not appear to contain information that would  
qualify as a cabinet confidence. As such, I find section 16(1) of FOIP does not apply. See  
Appendix A for details.  
6.  
Did Highways properly apply section 29(1) of FOIP?  
[80] Highways applied section 29(1) of FOIP to withhold the following records in part:  
Package A  
Record 5, Pages 24 and 25  
Record 11, Pages 41 to 54  
Record 23, Page 85  
Record 24, Pages 88 to 90  
Record 26, Pages 103 and 104  
Package B  
Record 1, Page 1  
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REVIEW REPORT 133-2020  
Record 2, Page 17  
Record 3, Page 23  
Record 4, Page 24  
Record 5, Page 25  
Record 6, Pages 26 to 28  
Record 7, Page 29  
Record 8, Page 32  
Record 9, Page 33  
Record 10, Page 34  
Record 11, Page 36  
Record 12, Page 37  
Record 13, Page 38  
Record 14, Page 39  
Record 15, Page 40  
Record 16, Page 41  
Record 17, Page 45  
Record 18, Page 47  
Record 19, Page 48  
[81] Section 29(1) of FOIP protects the privacy of individuals whose personal information may  
be contained within records responsive to an access to information request made by  
someone else. Section 29(1) of FOIP provides:  
29(1) No government institution shall disclose personal information in its possession  
or under its control without the consent, given in the prescribed manner, of the  
individual to whom the information relates except in accordance with this section or  
section 30.  
[82] When dealing with information in a record that appears to be personal information, the first  
step is to confirm that the information indeed qualifies as “personal information” as defined  
at section 24(1) of FOIP.  
[83] Highwayssubmission has claimed that this information qualifies as personal information  
pursuant to section 24(1) of FOIP generally and specifically, sections 24(1)(b), (e) and (k)  
of FOIP as follows:  
24(1) Subject to subsections (1.1) and (2), “personal information” means personal  
information about an identifiable individual that is recorded in any form, and includes:  
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REVIEW REPORT 133-2020  
(b) information that relates to the education or the criminal or employment history  
of the individual or information relating to financial transactions in which the  
individual has been involved;  
(e) the home or business address, home or business telephone number or  
fingerprints of the individual;  
(k) the name of the individual where:  
(i) it appears with other personal information that relates to the individual; or  
(ii) the disclosure of the name itself would reveal personal information about  
the individual.  
[84] While Highways quoted the specific sections above, it also noted that this information  
would qualify as personal information pursuant to section 24(1) of FOIP. While section  
24(1) of FOIP provides examples of the type of information that qualifies as personal  
information, this is not an exhaustive list. There may be other information that qualifies as  
personal information, if the following two elements exist:  
1. Is there an identifiable individual? and  
2. Is the information personal in nature?  
[85] I will now consider each portion of the record that Highways withheld pursuant to section  
29(1) of FOIP.  
Package A, Record 5, Pages 24 and 25  
Package A, Record 24, Pages 88 to 90  
Package A, Record 26, Pages 103 and 104  
[86] Record 5, pages 24 and 25 of Package A is a staff roster of Highways’ staff that includes  
their names, their occupational code, whether they had a cubicle or office and the size of  
that workspace. There is also a column for notes that in some cases records the floor they  
are on or their employment status. For three of the staff members listed, the notes recorded  
for them were withheld pursuant to section 29(1) of FOIP. Another version of this staff  
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REVIEW REPORT 133-2020  
roster can be found on record 26, pages 103 and 104 of Package A. On page 103, one staff  
member’s employment status is redacted in the Note’s column. On page 104, the  
employment status and the floor where the employee’s workspace is.  
[87] Record 24, pages 88 to 90 of Package A is a table that lists the names, office telephone  
number, work issued cellphone number and email address of Highways’ employees. In this  
table, Highways withheld the information in the table below the following columns: floor  
number, cubicle number, whether or not the employee has a side car, which from my  
understanding would relate to how an employee’s monitors or displays are set up,  
voicemail, whether or not the telephone number for the employee has a caller menu,  
whether or not the employee has a Shared Call Appearance, and if so what the number is,  
as well as other notes. The information recorded in the note’s field varies. In many instances  
the field is blank, others relate to accessories the employees are requesting or an employee’s  
employment status. There are also two rows that are highlighted and have information  
outside of the table.  
[88] Highways’ submission provides that it is relying on sections 24(1)(b) and (k) of FOIP as  
the information is “employment history, and the name of an individual appears with other  
personal information that relates to the individual.” Highways’ submission, for information  
related to the employeesworkspaces, states:  
Pages 88-90 The redactions on these pages are for non-responsive information, but  
they also contain references to cubicle numbers of some employees. The Government  
of Saskatchewan Directory indicates the Branches in which individuals work, but not  
cubicles, which could raise safety issues. There is no need for anyone outside of the  
office to know exactly where a particular employee sits, so it is not only non-responsive  
but irrelevant. Pursuant to s. 24(1)(k), it is also submitted that the individual’s name,  
along with a cubicle number which represents that individual’s personal space while  
they are at work, is information that is personal in nature.  
[89] My office’s Review Report 109-2021 discusses the definition of “employment history” as  
it relates to section 23(1)(b) The Local Authority Freedom of Information and Protection  
of Privacy Act (LA FOIP), which is the equivalent of FOIP’s section 24(1)(b):  
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REVIEW REPORT 133-2020  
[37] With respect to how the RM considered section 23(1)(b) of LA FOIP, in numerous  
past reports I have stated that employment history relates to information found in a  
personnel file, such as performance reviews or reasons for termination. A person’s  
name in conjunction with their position or job title, including being a lawyer, is not  
personal in nature. Rather, this information is considered business card information.  
[90] Information recorded in these tables that relates to an employee’s employment status would  
qualify as employment history pursuant to section 24(1)(b) of FOIP and therefore, should  
continue to be withheld pursuant to section 29(1) of FOIP. See Appendix A for details.  
[91] The remaining information in these tables relates to Highways employeesworkspace  
would not qualify as employment history and I am not persuaded that the information in  
the table would reveal anything personal in nature about the employees. As such, I find that  
section 29(1) of FOIP does not apply. See Appendix A for details.  
Package A, Record 11, Pages 41 to 54  
[92] Record 11, pages 41 to 54 of Package A are architectural drawings from Stantec. Highways  
withheld the professional seals/stamps on the drawings. In my office’s Review Report 301-  
2019, my office discussed the application of section 29(1) of FOIP to professional  
seals/stamps as follows:  
[21] There are two seals or stamps that were withheld by Environment in the responsive  
records. One appears to be the professional seal of an individual and the other is a  
professional stamp of an organization.  
[22] In my office’s Investigation Report 043-2017, my office found that an engineer’s  
professional seal did not qualify as personal information as follows:  
[10] The Complainant submits that the professional seal qualifies as personal  
information as it is an identifying symbol and number pursuant to subsection  
23(1)(d) of LA FOIP. He also submits that the entire application qualifies as his  
personal information.  
[11] I will first address the professional seal. This seal is governed by the bylaws  
of The Association of Professional Engineers and Geoscientists of Saskatchewan  
(APEGS). It is a round seal that indicates that the professional is a Professional  
Engineer in Saskatchewan. It also bears the professional’s name and association  
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REVIEW REPORT 133-2020  
member number as well as the date that the document was stamped. APEGS’  
publication entitled Authentication of Documents: Use of Profession Seals states:  
The seal constitutes the distinctive mark of the professional. It identifies work  
performed by, or under the direct supervision of a licensed professional. It assures  
the document’s recipient that the work meets the standards expected of experienced  
professionals who take personal responsibility for their judgments and decisions.  
The seal is important because it is a visible commitment to the standards of the  
profession and signifies to the public that a particular professional has accepted  
responsibility for the document.  
[12] By nature, the seal is meant to be a tool to signify to the public that a particular  
professional has accepted responsibility for the document to which it is affixed. As  
such, I do not find that it is personal in nature and does not qualify as personal  
information.  
[23] Just as found in this report, these seals or stamps do not reveal any information  
that is personal in nature and do not qualify as personal information. As such,  
subsection 29(1) of FOIP does not apply.  
[93] I adopt this analysis and find that section 29(1) of FOIP does not apply to the withheld  
information on record 11, pages 41 to 54 of Package A. See Appendix A for details.  
Package A, Record 23, Page 85  
[94] Record 23, page 85 of Package A is a closing statement in an email between Highways, the  
Ministry of Central Services and Stantec. The email relates to when an employee will be  
away from the office.  
[95] The information related to when the employee will be away does not contain any  
information that is personal in nature. As such, section 29(1) of FOIP does not apply.  
Package B  
[96] On pages of the record in Package B list below, Highways redacted information pursuant  
to section 29(1) of FOIP:  
Record 1, page 1 of Package B  
Record 2, page 17 of Package B  
Record 3, page 23 of Package B  
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Record 4, page 24 of Package B  
Record 5, page 25 of Package B  
Record 6, pages 26 to 28 of Package B  
Record 7, page 29 of Package B  
Record 8, page 32 of Package B  
Record 9, page 33 of Package B  
Record 10, page 34 of Package B  
Record 11, page 36 of Package B  
Record 12, page 37 of Package B  
Record 13, page 38 of Package B  
Record 14, page 39 of Package B  
Record 15, page 40 of Package B  
Record 16, page 41 of Package B  
Record 17, page 45 of Package B  
Record 18, page 47 of Package B  
Record 19, page 48 of Package B  
[97] In the header of the emails, Highways redacted the work email address or the names of  
third party employees. In the body of the emails, Highways also redacted the names of third  
party employees and on page 45, the signature line includes the name of an individual,  
business name, address, telephone number and email address.  
[98] Highways’ submission states:  
The Ministry recognizes that the IPC has said that business card information is not  
personal information. However, in view of the specific language in s. 24(1)(e) of  
FOIPPA, that says that “business address” and “business telephone number” are  
personal information, and the fact that s. 29(1) is mandatory, the Ministry feels  
compelled to comply with the clear language of these legislative provisions and redact  
that information. The Ministry also treats a business email as comparable to a business  
address or telephone number and has therefore claimed 24(1) generally and 24(1)(e)  
for that information.  
The emails disclose employment history (s. 24(1)(b)), email addresses (s. 24(1),  
24(1)(e)) and the name of the individual appears with other personal information that  
relates to the individual (s. 24(1)(k)).  
The information includes place of employment which is employment history (s.  
24(1)(b)), business address and business telephone number (s. 24(1)(e)), and email  
address (s. 24(1), 24(1)(e)). The name of the individual also appears with other personal  
information that relates to the individual (s. 24(1)(k)).  
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REVIEW REPORT 133-2020  
[99] In my office’s Review Report 274-2019, my office discusses business card information as  
follows:  
[70] In Review Report 301-2019, my office discussed business card information as  
follows:  
[13] In Review Report 186-2019, my office found that business card information  
would not be considered personal information, as follows:  
[25] …the Ministry has also applied subsection 29(1) of FOIP to cellular  
telephone numbers of a third party business employee. In its submission, the  
Ministry indicated that the cellular telephone number was withheld because if  
released it would disclose personal information of an identifiable individual as  
the number is not publicly available.  
[26] Business card information is the type of information found on a business  
card (name, job title, work address, work phone numbers and work email  
address). This type of information is generally not personal in nature and  
therefore would not be considered personal information. Further, in Review  
Report 149-2019, 191-209 [sic], I noted that business card information does not  
qualify as personal information when found with work product. Work product  
is information generated by or otherwise associated with an individual in the  
normal course of performing his or her professional or employment  
responsibilities, whether in a public or private setting. Work product is also not  
considered personal information.  
[28] In Review Report F-2010-001, Review Report F-2012-006 and Review  
Report LA-2013-002, my office noted that section 4.01 the Personal  
Information Protection and Electronic Documents Act (PIPEDA), which  
applies to every organization that collects, uses or discloses personal  
information in the course of “commercial activities”, carves out business  
contact information from the type of personal information that requires  
protection.  
[29] Subsection 2.1 of PIPEDA defines “business contact information” as,  
“information that is used for the purpose of communicating or facilitating  
communication with an individual in relation to their employment, business or  
profession such as the individual’s name, position name or title, work address,  
work telephone number, work fax number or work electronic address.” This  
supports the conclusion that business card information is not meant to be  
personal information for the purposes of subsection 24(1) of FOIP when it  
appears in work product.  
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REVIEW REPORT 133-2020  
[30] The cellular telephone number, therefore, constitutes business card  
information and does not qualify as personal information in this instance. I  
recommend that the Ministry release it to the Applicant.  
[100] This information is not personal in nature, and therefore section 29(1) of FOIP does not  
apply to these pages of the record. See Appendix A for details.  
7.  
Did Highways properly apply section 19(1)(b) of FOIP?  
[101] Highways applied section 19(1)(b) of FOIP to portions of record 11, pages 41 to 54 and  
record 20, page 78 of Package A and record 17, page 45 of Package B.  
[102] Section 19(1)(b) of FOIP applies as follows:  
19(1) Subject to Part V and this section, a head shall refuse to give access to a  
record that contains:  
(b) financial, commercial, scientific, technical or labour relations information that  
is supplied in confidence, implicitly or explicitly, to a government institution by a  
third party;  
[103] Section 19 of FOIP is a mandatory, class-based and harm-based provision, meaning, it  
contains both class and harm-based exemptions. As a mandatory provision, the government  
institution has no, or more limited, discretion regarding whether or not to apply the  
exemption. That is, if the information is covered by the exemption and the conditions for  
the exercise of discretion do not exist, then it must not be disclosed (Guide to FOIP, Ch. 4,  
p. 193).  
[104] The following three-part test can be considered for the application of section 19(1)(b) of  
FOIP:  
1. Is the information financial, commercial, scientific, technical or labour relations  
information of a third party?  
2. Was the information supplied by the third party to a government institution?  
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REVIEW REPORT 133-2020  
3. Was the information supplied in confidence implicitly or explicitly?  
(Guide to FOIP, Ch. 4, pp. 198-202)  
[105] On June 11, 2020, my office received an email from Kreate Architecture and Design Ltd.  
advising it had, “no concerns related to release of information related to our firm.”  
However, it does not appear Highways is withholding any information pertaining to this  
third party pursuant to section 19(1)(b) of FOIP.  
Package A, Record 11, Pages 41 to 54  
[106] Package A, record 11, pages 41 to 54 are described in Highways’ submission as “demo  
drawings” for the property at issue. Highways released the drawing and withheld the seals  
and signatures on the drawings.  
[107] Highwayssubmission provides:  
…the redactions contain seals and signatures which the third party has identified as  
commercial information of Stantec. Highways submits that this information not only  
has commercial value to Stantec but could also qualify as technical information as it  
relates to an organized filed of knowledge in this case engineering.  
[108] Commercial informationis information relating to the buying, selling or exchange of  
merchandise or services. This can include third party associations, past history, references  
and insurance policies and pricing structures, market research, business plans, and  
customer records (Guide to FOIP, Ch. 4, p. 198).  
[109] “Technical informationis information relating to a particular subject, craft or technique.  
Examples are system design specifications and the plans for an engineering project. It is  
information belonging to an organized field of knowledge which would fall under the  
general categories of applied sciences or mechanical arts. Examples of these fields would  
include architecture, engineering or electronics. It will usually involve information  
prepared by a professional in the field and describe the construction, operation or  
maintenance of a structure, process, equipment or thing. Finally, technical information  
33  
REVIEW REPORT 133-2020  
must be given a meaning separate from scientific information (Guide to FOIP, Ch. 4, p.  
199).  
[110] I am not persuaded that professional engineering seals and signatures would qualify as  
commercial information or technical information. As such, section 19(1)(b) of FOIP would  
not apply.  
[111] As well, while Highways has provided correspondence from Stantec in February 2020  
showing they objected to the release of this information, on June 15, 2020, my office  
received an email from Stantec advising it had, “reviewed the records and [did] not object  
to the release of the records.”  
[112] Section 19(2) of FOIP provides that information in a record may be released with the  
consent of the third party:  
19(2) A head may give access to a record that contains information described in  
subsection (1) with the written consent of the third party to whom the information  
relates.  
[113] I recommend Highways release Package A, record 11, pages 41 to 54 to the Applicant. See  
Appendix A for details.  
Package A, Record 20, Page 78  
[114] Package A, record 20, page 78 is an email between Shindico and Highways. In the email,  
Shindico indicates it is providing an excerpt from the lease for the property in relation to  
parking. Highways withheld the monthly dollar amount per parking stall and the total  
annual costs for all parking stalls. Highwayssubmission states:  
On page 78 of the record, information related to unit prices for parking stalls has been  
redacted as commercial information of the third party supplied to Highways, implicitly  
in confidence since release of unit prices could affect subsequent negotiations with  
other parties or be helpful to competitors.  
34  
REVIEW REPORT 133-2020  
In Canadian Bank Note Ltd v Saskatchewan Government Insurance, 2016 SKQB 362,  
SGI contracted with the applicant, to provide driver’s licences, and a competitor sought  
the unit price being paid per driver’s licence/card. The Saskatchewan Court of Queen’s  
Bench found that the unit price was commercial information under s. 19(1)(b) and had  
been supplied in confidence by the third party, so SGI had properly refused to give  
access to it. It is submitted that this is a comparable situation to the one referred to on  
page 78 of the record.  
[115] I note that Highways failed to provide any supporting documentation that this information  
had been provided in confidence implicitly or explicitly. However, in my office’s Review  
Report 150-2020, my office considered the application of section 19(1)(b) of FOIP to costs  
associated to parking at this same property. In that review, the government institution  
involved was the Ministry of Central Services, the ministry that was conducting the  
negotiations with the third party for the space at the property for Highways. In that review,  
my office found as follows:  
[26] The first redaction, the annual dollar amount for the rent of parking stalls; the  
second redaction, the monthly dollar amount for the rent of parking stalls; and the other  
dollar amount in the third redaction, the monthly dollar amount based on the number  
of parking stalls rented, qualifies as financial, commercial, scientific, technical or  
labour relations information of a third party. However, as Central Services has already  
released the total number of parking stalls, the release of any of these other redacted  
portions of the record would allow the Applicant to calculate the dollar amount for the  
rent per parking stall in the third redaction, which I have found subsection 19(1)(b) of  
FOIP to apply to. As such, I adopt the analysis from Review Report 086-019, and find  
that subsection 19(1)(b) of FOIP would apply to the remaining withheld portions of the  
record.  
[116] As such, I find section 19(1)(b) of FOIP applies to the information withheld on record 20,  
page 78 of Package A. See Appendix A for details.  
Package B, Record 17, Page 45  
[117] Package B, record 17, page 45 of the information withheld on this page pursuant to section  
19(1)(b) of FOIP is an acronym for a business name that is being discussed in an email  
between third party businesses and subsequently forwarded to Highways. Highways  
released the remainder of the body of that email that consisted of one sentence. I am not  
35  
REVIEW REPORT 133-2020  
persuaded that this information would qualify for exemption pursuant to section 19(1)(b)  
of FOIP. See Appendix A for details.  
[118] Additionally, in Highwayssubmission, it indicated it would be willing to release this  
information. As such, it should proceed to release this information to the Applicant.  
8.  
Did Highways properly apply section 17(1)(a) of FOIP?  
[119] Highways withheld portions of the responsive records pursuant to section 17(1)(a) of FOIP  
as follows:  
Package A  
Record 1, Page 4 (first redaction)  
Record 2, Page 8 (last redaction) and Page 9 (first redaction)  
Record 10, Page 35  
Record 12, Page 55  
Record 19, Pages 75 and 76  
Package B  
Record 2, Pages 19, 20 and 22  
Record 7, Pages 30 and 31  
Record 16, Pages 42, 43 and 44  
Record 17, Page 46  
[120] Section 17(1)(a) of FOIP provides as follows:  
17(1) Subject to subsection (2), a head may refuse to give access to a record that could  
reasonably be expected to disclose:  
(a) advice, proposals, recommendations, analyses or policy options developed by  
or for a government institution or a member of the Executive Council;  
[121] Section 17(1)(a) of FOIP is a discretionary class-based exemption. It permits refusal of  
access in situations where release of a record could reasonably be expected to disclose  
advice, proposals, recommendations, analyses or policy options developed by or for a  
36  
REVIEW REPORT 133-2020  
government institution or a member of the Executive Council (Guide to FOIP, Ch. 4, p.  
123).  
[122] My office uses the following two-part test to determine if section 17(1)(a) of FOIP applies:  
1. Does the information qualify as advice, proposals, recommendations, analyses or  
policy options?  
Adviceis guidance offered by one person to another. It can include the analysis  
of a situation or issue that may require action and the presentation of options for  
future action, but not the presentation of facts. Advice encompasses material that  
permits the drawing of inferences with respect to a suggested course of action, but  
which does not itself make a specific recommendation. It can be an implied  
recommendation. The “pros and cons” of various options also qualify as advice. It  
should not be given a restricted meaning. Rather, it should be interpreted to include  
an opinion that involves exercising judgement and skill in weighing the significance  
of fact. It includes expert opinion on matters of fact on which a government  
institution must make a decision for future action.  
Advice includes the views or opinions of a public servant as to the range of policy  
options to be considered by the decision maker even if they do not include a specific  
recommendation on which option to take. Advice has a broader meaning than  
recommendations. The legislative intention was for advice to have a distinct  
meaning from recommendations. Otherwise, it would be redundant. While  
“recommendation” is an express suggestion, “advice” is simply an implied  
recommendation.  
A recommendationis a specific piece of advice about what to do, especially when  
given officially; it is a suggestion that someone should choose a particular thing or  
person that one thinks particularly good or meritorious. Recommendations relate to  
a suggested course of action more explicitly and pointedly than “advice”. It can  
include material that relates to a suggested course of action that will ultimately be  
accepted or rejected by the person being advised. It includes suggestions for a  
course of action as well as the rationale or substance for a suggested course of  
action. A recommendation, whether express or inferable, is still a recommendation.  
A proposalis something offered for consideration or acceptance.  
Analyses(or analysis) is the detailed examination of the elements or structure of  
something; the process of separating something into its constituent elements.  
Policy optionsare lists of alternative courses of action to be accepted or rejected  
in relation to a decision that is to be made. They would include matters such as the  
public servant’s identification and consideration of alternative decisions that could  
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REVIEW REPORT 133-2020  
be made. In other words, they constitute an evaluative analysis as opposed to  
objective information.  
2. Was the advice, proposals, recommendations, analyses and/or policy options  
developed by or for a government institution or a member of the Executive Council?  
(Guide to FOIP, Ch. 4, pp. 124-130)  
[123] I will consider the application of section 17(1)(a) of FOIP to each redacted portion of the  
record Highways has claimed is applies.  
Package A, Record 1, Page 4  
Package A, Record 2, Pages 8 and 9  
[124] Highwayssubmission provides as follows:  
48. With respect to page 4 and the same email on pages 8-9:  
Part 1 of the test: The author of the record provided his analysis and opinion/advice…  
This is not simply a statement of fact. It provides a perspective or critique; it is an  
opinion that involves exercising judgment and skill in weighing the significance of fact.  
Part 2 of the test: The analysis and opinion/advice was provided by [name of Ministry  
of Central Servicesemployee], an employee of Central Services to an employee of  
Highways.  
[125] The redacted portions of this email thread were released by the Ministry of Central Services  
on page 9 of Package D in IPC File 274-2019. As this portion of the record had been  
released, it was not at issue in that review and the application of exemptions was not  
considered.  
[126] I note that the two emails with portions withheld in the email threads on pages 4 and 8 to 9  
are the same emails. Additionally, on page 13 of this record, the portion of the email thread  
is the same as the second email found on pages 4 and 9. Highways withheld this information  
on each of the pages; however, it did not apply section 17(1)(a) of FOIP in a consistent  
manner. Highways only noted section 17(1)(a) of FOIP in the instance on page 9. In future,  
Highways should ensure it applies exemptions in a consistent manner.  
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REVIEW REPORT 133-2020  
[127] Based on a review of these records, it appears the portion of the first email withheld  
pursuant to section 17(1)(a) of FOIP is attempting to schedule a meeting to finalize  
decisions related to the space to be leased. This does not qualify as advice. As such, section  
17(1)(a) of FOIP would not apply. See Appendix A for details.  
[128] Based on a review of the second email, the email appears to be noting other items that need  
to be discussed. There does not appear to be any information in this email that would  
qualify as advice, proposals, recommendations, analyses or policy options developed by or  
for a government institution. As such, section 17(1)(a) of FOIP would not apply. See  
Appendix A for details.  
Package A, Record 10, Page 35  
[129] Highwayssubmission provided as follows:  
49. With respect to page 35, second redaction:  
Part 1 of the test: The information redacted describes a cost analysis.  
Part 2 of the test: The analysis was provided by [name of the Ministry of Central  
Services employee], an employee of Central Services, to an employee of Highways.  
[130] The withheld information is a portion of a sentence in an email that references the type of  
document that information had been included in. In my office’s Review Report 274-2019,  
my office considered the application of sections 17(1)(a) and 17(1)(b)(i) of FOIP to the  
same information that was withheld in this record and found neither applied. Based on a  
review of the record, and Highways’ submissions, I have not been persuaded that section  
17(1)(a) of FOIP would apply. As such I do not find section 17(1)(a) of FOIP applies. See  
Appendix A for details.  
Package A, Record 12, Page 55  
[131] Highwayssubmission provided as follows:  
39  
REVIEW REPORT 133-2020  
50. With respect to page 55, an email from [name of Central Servicesemployee], an  
employee of Central Services provided analysis and advice to [name of Highways’  
employee], an employee of HighwaysThis is not merely factual information. It  
involves analysis… and is “guidance offered by one person to another” and “an opinion  
that involves exercising judgment and skill in weighing the significance of fact”. [name  
of Central Servicesemployee] then followed up with another email to [name of  
Highwaysemployee] after a more detailed review of the agreement and expressed the  
view that her previous opinion was not accurate. She then corrected the advice she had  
earlier given [name of Highwaysemployee] with this opinion. This email also  
constitutes an analysis of the agreementConsequently, both emails on page 55  
qualify for the exemption in s. 17(1)(a) of FOIPPA.  
[132] In my office’s Review Report 274-2019, the Ministry of Central Services had redacted  
similar information in Package D, page 182. The record at issue was an email thread  
containing two emails. In the first email, the Ministry of Central Services had released the  
closing statement for the email, whereas Highways withheld those portions. Otherwise,  
both Ministries withheld the body of the initial email. In the second email, the Ministry of  
Central Services had released the first two sentences and last two sentences of the body of  
the email, whereas Highways withheld these portions. Otherwise, both withheld the body  
of the second email.  
[133] In my office’s Review Report 274-2019, the Ministry of Central Services had applied  
sections 17(1)(a), 17(1)(b)(i), 18(1)(d) and 18(1)(e) of FOIP to withhold these portions of  
the record. In that report, the Commissioner found that none of these exemptions applied  
to the withheld information. Based on a review of the record, the information at issue  
appears to be factual in nature. As such, I find section 17(1)(a) of FOIP would not apply.  
See Appendix A for details.  
Package A, Record 19, Pages 75 and 76  
[134] Highwayssubmissions provided as follows:  
51. With respect to pages 75-76:  
Part 1 of the test:  
40  
REVIEW REPORT 133-2020  
(a) At the top of page 76, the writer provided analysis and adviceAgain, this  
information is not simply a statement of fact. It is guidance from one person to another  
and permits the drawing of an inference with respect to a suggested course of action. It  
examines an issue critically and includes an opinion that weighs the significance of  
fact.  
(b) On page 75, Central Services discussed with Highways a proposal to be provided  
to the landlord.  
Part 2 of the test: (a) The analysis and advice on page 76 was provided by [name of  
Ministry of Central Servicesemployee], an employee of Central Services to [name of  
Highwaysemployee], an employee of Highways. (b) The proposal on page 75 was  
also conveyed by [name of Ministry of Central Servicesemployee] at Central Services  
to [name of Highwaysemployee] at Highways.  
[135] This record is an email thread. Highways withheld portions of the body of the email thread.  
There are two redacted portions. One redaction on page 75 and one redaction on page 76.  
The information relates to the property Highways intends to lease. However, I am not  
persuaded that the information qualifies as analysis or advice, or that it would permit the  
drawing of accurate inferences. Based on my review, the information appears to be factual  
information. As such, section 17(1)(a) of FOIP would not apply. See Appendix A for  
details.  
Package B, Record 7, Pages 30 and 31  
Package B, Record 16, Pages 42, 43, 44  
Package B, Record 17, Page 46  
[136] Highwayssubmission provided as follows:  
68. The Ministry claims the exemption in s. 17(1)(a) for redactions that appear on pages  
30, 31, 42, 43, 44, and 46 of the set of 48 pages of records. All of these pages contain  
diagrams which were proposed plans. The diagrams were released to the Applicant but  
these were not final plans. Information was redacted pursuant to s. 17(1)(a) because the  
redacted information constituted proposals and recommendations as to where particular  
things would be situated, or what tenants would occupy certain areas in the building,  
and some of the plans indicated who had made the proposals, which were provided in  
confidence.  
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REVIEW REPORT 133-2020  
69. The proposals and recommendations on pages 30, 31, 42, 43, 44 and 46 were  
developed by Shindico or [name of business], for the Ministry of Highways. The plans  
were therefore developed for a government institution.  
[137] The floor plans on pages 30 and 31 are an attachment to an email and appear to have been  
forwarded to Highways by a third party for the space it would be leasing at the property at  
issue. The email these floor plans were attached a layout for the space based on discussions  
and requesting a response if revisions are required.  
[138] The floor plans on these two pages were released, with the exception of two redactions.  
The first redaction on those two pages is an area of the building and the label for that area.  
The second redaction is the name of the company that prepared the drawings, along with  
the phone number and email address.  
[139] In my office’s Review Report 416-2019, my office considered the application of section  
19(1)(b) of FOIP to withhold a floor plan in full. Package G, page 7 of that review had a  
floor plan that contained the same part of the drawing and label for that area of the building  
that Highways has severed from each of the floor plan drawings on these pages. In my  
office’s Review Report 416-2019 at paragraph [170], I recommended the release of the  
floor plan drawing in full. Once information is released to an Applicant, they have the  
ability to disperse this information in any way they see fit and it could end up in the public  
domain. For these reasons, if this information has previously been released by the Ministry  
of Central Services, I recommend Highways also release it.  
[140] In my office’s Review Report 274-2019, my office considered the application of section  
17(1)(a) of FOIP to architectural drawings and office space floor plan drawings for the  
same property:  
[60] Based on the emails that the architectural plans and drawings were attached to, the  
architectural plans and drawings were developed for 3346286 Manitoba Ltd. property  
that Central Services had negotiated a lease with for space. The emails forwarding the  
architectural plans and drawings was then approved by Central Services in order for  
construction to proceed. This information would qualify as a “proposal” for the  
purposes of subsection 17(1)(a) of FOIP, which is defined as something offered for  
consideration or acceptance. As this proposal was developed for Central Services’  
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REVIEW REPORT 133-2020  
approval to proceed with construction, I find that subsection 17(1)(a) of FOIP would  
apply to pages D168 to D181. See Appendix A for details.  
[61] Pages D12 and D20 are office space floor plan drawings being considered by  
Central Services and Highways for the utilization of this space. However, unlike the  
architectural plans and drawings at pages D168 to D181, these drawing appear to be  
discussed and described in detail in the emails they are attached to. It is unclear how  
the drawing itself would reveal any information described in these exemptions that is  
not already revealed in the accompanying emails. I am not persuaded that subsections  
17(1)(a) or 17(1)(b)(i) of FOIP apply to pages D12 and D20. See Appendix A for  
details.  
[141] The floor plans on pages 30 and 31 were attached to an email that appeared to be providing  
a proposed office layout for the space Highways was leasing. However, it does not appear  
from the email that the area of the floor plan withheld was specifically proposed or  
recommended for consideration. As such, I do not find that section 17(1)(a) of FOIP applies  
to the first redaction on these pages. Additionally, the second redaction on both these pages  
is the name of a company and their contact information. This information would not qualify  
for exemption under section 17(1)(a) of FOIP.  
[142] I find section 17(1)(a) of FOIP does not apply to pages 30 and 31. See Appendix A for  
details.  
[143] The floor plans on pages 42, 43 and 44 were attached to an email thread between Highways  
and a third party. The email indicates it was provided for Highways’ internal discussions.  
The floor plans on these three pages of the record release the floor plans, with severing as  
follows:  
Page 42: First redaction is an area of the building and the label for that area. Second  
redaction is a label below the floor plans and that indicates who is leasing an area  
of the floor plan of the building.  
Page 43: First redaction is an area of the building and the label for that area. Second  
and third redactions are labels below the floor plans and that indicates who is  
leasing an area of the floor plan of the building.  
Page 44: First and second redactions are labels below the floor plans that indicate  
who is leasing an area of the floor plan of the building.  
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REVIEW REPORT 133-2020  
[144] I am not persuaded that any of the portions of information withheld on these pages qualify  
as advice, proposals, recommendations, analyses or policy options. I find section 17(1)(a)  
of FOIP does not apply to pages 42, 43 and 44. See Appendix A for details.  
[145] The floor plan on page 46 is attached to an email to Highways. The floor plan was released  
with the exception of one redaction to an area of the floor plan and the label for that area.  
The other eight redactions are labels outside of the floor plan drawing that indicates who is  
leasing the different areas of the floor plan.  
[146] I am not persuaded that any of the portions of information withheld on this page qualifies  
as advice, proposals, recommendations, analyses or policy options. I find section 17(1)(a)  
of FOIP does not apply to page 46. See Appendix A for details.  
Package B, Record 2, Pages 19, 20 and 22  
[147] The copy of the records provided by Highways shows it had also redacted some portions  
of Record 2, Pages 19, 20 and 22 of Package B. However, its submission did not address  
these redactions. I will consider the application of section 17(1)(a) of FOIP to these pages  
of the record based on my review of the face of the record. The records appear to be office  
space drawings. Highways released the drawings and withheld the logos for two different  
businesses. The logo on pages 20 and 22 also includes the business contact information of  
a third party business. Based on a review of the face of the record, it is not clear how this  
would qualify as advice, proposals, recommendations, analyses or policy options  
developed for a government institution. As such, I find that section 17(1)(a) of FOIP does  
not apply to these portions of the record. See Appendix A for details.  
9.  
Did Highways properly apply section 17(1)(b)(i) of FOIP?  
[148] Highways withheld portions of the responsive records pursuant to section 17(1)(b)(i) of  
FOIP as follows:  
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REVIEW REPORT 133-2020  
Package A  
Record 1, Page 4  
Record 2, Page 8 and Page 9  
Record 3, Page 13  
Record 9, Page 33  
Record 11, Page 38 and 39  
Record 12, Page 55  
Record 14, Pages 58 and 59  
Record 15, Pages 61 to 63  
Record 18, Page 69  
Record 19, Pages 75 and 76  
Record 25, Page 91  
Record 26, Page 94  
[149] Section 17(1)(b)(i) of FOIP provides:  
17(1) Subject to subsection (2), a head may refuse to give access to a record that could  
reasonably be expected to disclose:  
(b) consultations or deliberations involving:  
(i) officers or employees of a government institution;  
[150] Section 17(1)(b) of FOIP is a discretionary class-based exemption. It permits refusal of  
access in situations where release of a record could reasonably be expected to disclose  
consultations or deliberations involving officers or employees of a government institution,  
a member of the Executive Council or the staff of a member of the Executive Council  
(Guide to FOIP, Ch. 4, p. 131).  
[151] The provision is intended to allow persons having the responsibility to make decisions to  
freely discuss the issues before them in order to arrive at well-reasoned decisions. The  
intent is to allow such persons to address an issue without fear of being wrong, looking  
bad, or appearing foolish if their frank deliberations were to be made public (Guide to  
FOIP, Ch. 4, p. 131).  
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[152] My office uses the following two-part test to determine if section 17(1)(b)(i) of FOIP  
applies:  
1. Does the record contain consultations or deliberations?  
Consultationmeans:  
the action of consulting or taking counsel together: deliberation, conference;  
a conference in which the parties consult and deliberate.  
A consultation can occur when the views of one or more officers or employees of  
a government institution are sought as to the appropriateness of a particular  
proposal or suggested action. It can include consultations about prospective future  
actions and outcomes in response to a developing situation. It can also include past  
courses of action. For example, where an employer is considering what to do with  
an employee in the future, what has been done in the past can be summarized and  
would qualify as part of the consultation or deliberation.  
Deliberationmeans:  
the action of deliberating (to deliberate: to weigh in mind; to consider  
carefully with a view to a decision; to think over); careful consideration with  
a view to a decision;  
the consideration and discussions of the reasons for and against a measure  
by a number of councillors.  
A deliberation can occur when there is a discussion or consideration of the reasons  
for or against an action. It can refer to discussions conducted with a view towards  
making a decision.  
2. Do the consultations or deliberations involve officers or employees of a government  
institution, a member of the Executive Council, or the staff of a member of the  
Executive Council?  
(Guide to FOIP, Ch. 4, pp. 132-135)  
[153] I will consider the application of 17(1)(b)(i) of FOIP to each redacted portion of the record  
Highways has claimed is applies.  
Package A, Record 1, Page 4  
Package A, Record 1, Pages 8 and 9  
Package A Record 3, Page 13  
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REVIEW REPORT 133-2020  
[154] Each portion of these pages of the record contain the same emails within different email  
threads. Highwayssubmissions provided as follows:  
Pages 4, 8-9, 13 This email thread involves a consultation that occurred between an  
employee of Central Services ([name of Ministry of Central Servicesemployee) and  
an employee of Highways ([name of Highwaysemployee]). [Name of Highways’  
employee] provided [name of Ministry of Central Servicesemployee] with drawings,  
noting that the design had changed and requesting approval. [Name of Highways’  
employee] provided [name of Ministry of Central Servicesemployee] with comments  
he had received and raised another issue that [they] wanted to discuss with [name of  
Central Servicesemployee]. [Name of Ministry of Central Servicesemployee]  
responded referring to five opinions received and requesting clarification as to whether  
Highways approved proposed modifications, advising of timelines and requesting a  
meeting. In other words, they were consulting on final plans in preparation for  
construction to begin.  
[155] I note that this information was released by the Ministry of Central Services in Package D,  
page 9 in file 274-2019. Therefore, this portion of the email was not at issue in that review  
as no exemptions were applied to the information. Once information is released to an  
Applicant, they have the ability to disperse this information in any way they see fit and it  
could end up in the public domain. For these reasons, if this information has previously  
been released by the Ministry of Central Services, I recommend Highways also release it.  
[156] I note that the two emails with portions withheld in the email threads on pages 4 and 8 to 9  
are the same emails. Additionally, on page 13 of this record, the portion of the email thread  
is the same as the second email found on pages 4 and 9.  
[157] Based on a review of the record first email, it appears the portion withheld is attempting to  
schedule a meeting to finalize decisions related to the space to be leased. Based on a review  
of the second email, the email appears to be noting other items that need to be discussed. I  
am not persuaded that the information would qualify as consultations or deliberations. As  
such, section 17(1)(b) of FOIP would not apply. See Appendix A for details.  
Package A, Record 9, Page 33  
[158] Highwayssubmissions provided as follows:  
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REVIEW REPORT 133-2020  
Page 33 In this email exchange, an employee of Central Services ([name of Ministry  
of Central Services’employee A]) consulted with another employee in the Ministry  
([name of Ministry of Central Servicesemployee B]) to obtain the contact information  
for the landlord at [the specified address], explaining why Highways needed it. [Name  
of Ministry of Central Servicesemployee B] responded with the information and  
[name of Ministry of Central Servicesemployee A] forwarded it to Highways. It was  
a three-way consultation involving two employees of Central Services and one  
employee of Highways, since it was implied that the employee from Highways ([name  
of Highwaysemployee]) had requested the information.  
[159] This page of the record is an email thread. Highways has withheld portions of two of the  
emails. The portions of the emails withheld on this page of the record are the same emails  
as page 36, Package D in IPC File 274-2019. In that file, the Ministry of Central Services  
released those emails in full. As such, this page of the record was not at issue in that review  
as no exemptions were applied to the information. Once information is released to an  
Applicant, they have the ability to disperse this information in any way they see fit and it  
could end up in the public domain. For these reasons, if this information has previously  
been released by the Ministry of Central Services, I recommend Highways also release it.  
[160] Based on a review of the record, and the description provided in Highways’ submission,  
the email thread is requesting landlord contact information and then forwarding that  
information to Highways. This information is factual and I am not persuaded that either of  
the redactions on this page qualify as consultations or deliberations. As such, section  
17(1)(b) of FOIP would not apply. See Appendix A for details.  
Package A, Record 11, Pages 38 and 39  
[161] Highwayssubmissions provided as follows:  
Pages 38-39 This email trail involved a consultationThe individuals involved were  
an employee from Stantec (for demo drawings), employees of Central Services ([name  
of Ministry of Central Servicesemployee]) and Highways (name of Highways’  
employee]) and Shindico…  
[162] These pages of the record are an email thread. Highways withheld portions four emails on  
page 38 and a portion of one email on page 39. All emails appear to be discussing  
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REVIEW REPORT 133-2020  
demolition plans. Based on Highways’ submission and my review of the record, I am not  
persuaded that the information would qualify as consultations or deliberations. As such,  
section 17(1)(b) of FOIP would not apply. See Appendix A for details.  
Package A, Record 12, Page 55  
[163] Highwayssubmission describes the record as “an email trail between employees of  
Highways and Central Services” discussing additional space at the specified property.  
[164] In my office’s Review Report 274-2019, the Ministry of Central Services had redacted  
similar information in Package D, page 182. In that case, the Ministry of Central Services  
applied sections 17(1)(a), 17(1)(b)(i), 18(1)(d) and 18(1)(e) of FOIP to the withheld  
portions. I found none of these exemptions applied to the withheld information.  
[165] The record at issue is an email thread containing two emails. In the first email, the Ministry  
of Central Services had released the closing statement for the email, whereas Highways  
withheld those portions. Otherwise, both withheld the body of the initial email. In the  
second email, the Ministry of Central Services had released the first two sentences and last  
two sentences of the body of the email, whereas Highways withheld these portions.  
Otherwise, both withheld the body of the second email. The information withheld appears  
to be factual information and would not qualify as consultations or deliberations. As such,  
I find section 17(1)(b) of FOIP would not apply. See Appendix A for details.  
Package A, Record 14, Pages 58 and 59  
[166] Highwayssubmissions provided as follows:  
Pages 58-59 In this email thread, employees of Central Services and Highways  
consulted on potential completion dates.  
[167] Highways applied three redactions to page 58. Highways withheld the body of the emails  
for the three emails in the email thread. Page 59 contains to a sentence and a half of the  
body of the email.  
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REVIEW REPORT 133-2020  
[168] The emails appear to discuss timelines for work to be completed. Based on my review, it  
doesn’t appear the information at issue would qualify as consultations or deliberations. As  
such, I find section 17(1)(b) of FOIP does not apply. See Appendix A for details.  
Package A, Record 15, Pages 61 to 63  
[169] Highwayssubmissions provided as follows:  
Pages 61-63 This record is a Project Status Report. Project Status Reports are standard  
procedure in managing a project, including its scope, costs and schedule, and operate  
as a consultation mechanism.  
[170] These pages are a report that was attached to an email. Highways has withheld portions  
severed three portions on page 61, one portion on page 62 and four portions on page 63.  
This same report can be found on pages 188-190, Package D in IPC File 274-2019. In that  
file, the Ministry of Central Services released that record in full. As such, these pages of  
the record was not at issue in that review as no exemptions were applied to the information.  
[171] The report discusses the status and budgeted costs for the project at the specified address;  
however, there does not appear to be anything in the report that would qualify as a  
consultation or deliberation. As such, I find section 17(1)(b)(i) of FOIP does not apply. See  
Appendix A for details.  
Package A, Record 18, Page 69  
[172] Highwayssubmissions provides that this record is an email between Highways and  
Central Services relating to the process to acquire space at the specified address.  
[173] The portion of the email withheld shows the name of the attachment and information being  
relayed by the Ministry of Central Services to Highways regarding an opportunity to secure  
additional space. It appears they are just relaying information received from the third party  
and requesting finalization of floor plans. Based on review of the information I am not  
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REVIEW REPORT 133-2020  
persuaded that it would qualify as consultation or deliberations. As such, I find section  
17(1)(b)(i) of FOIP does not apply. See Appendix A for details.  
Package A, Record 19, Pages 75 and 76  
[174] Highwayssubmissions provided as follows:  
Pages 75-76 This was an email exchange between an employee from Highways  
([name of Highwaysemployee]) and an employee from Central Services ([name of  
Ministry of Central Servicesemployee]) consulting on details with respect to the plans  
for the space at [the specified address]…  
[175] This record is an email thread. Highways withheld portions of the body of the email thread.  
There are three redacted portions. One redaction on page 75 and one redaction on page 76.  
The information relates to the property Highways intends to lease. However, I am not  
persuaded that the information would qualify as consultations or deliberations as appears  
to be factual information. As such, section 17(1)(b)(i) of FOIP does not apply. See  
Appendix A for details.  
Package A, Record 25, Page 91  
[176] Highwayssubmissions provided as follows:  
Page 91 This is another consultation between the third party Shindico and [name of  
Highwaysemployee] from Highways, in which some information has been redacted.  
The email indicates that the consultation began with a conversation as it says, “Further  
to our conversation…” and “as discussed”. In this email, Shindico attached a site plan  
and provided further information.  
[177] The record is a single email from Shindico to two Highwaysemployees and a gmail.com  
email account. Highways withheld portions of the body of the email. There are three  
redacted portions. Based on my review off this information, it appears to be details related  
to the property at issue. The information appears to be factual in nature and I am not  
persuaded that is qualifies as a consultation. As such, section 17(1)(b)(i) of FOIP does not  
apply. See Appendix A for details.  
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REVIEW REPORT 133-2020  
Package A, Record 26, Page 94  
[178] Highwayssubmissions provided as follows:  
Page 94 This is email from [name of Highwaysemployee], an employee of  
Highways to other employees in Highways. It is a consultation that began in a meeting  
of Highways employees; the email follows up with additional information arising out  
of that discussion.  
[179] The record is a single email from a Highways employee to a number of other Highways  
employees. Highways redacted a portion of the body of the email. Based on my review of  
the redacted information, it appears to be a list of items that they are seeking responses on.  
One of the items also appears to provide a rough estimate. However, all of the information  
appears to be either seeking factual information or providing factual information. As such,  
section 17(1)(b)(i) of FOIP does not apply. See Appendix A for details.  
10.  
Did Highways properly apply section 17(1)(c) of FOIP?  
[180] Highways withheld portions of record 15, pages 61 to 63 of Package A pursuant to section  
17(1)(c) of FOIP.  
[181] Section 17(1)(c) of FOIP provides:  
17(1) Subject to subsection (2), a head may refuse to give access to a record that could  
reasonably be expected to disclose:  
(c) positions, plans, procedures, criteria or instructions developed for the purpose  
of contractual or other negotiations by or on behalf of the Government of  
Saskatchewan or a government institution, or considerations that relate to those  
negotiations;  
[182] Section 17(1)(c) of FOIP is a discretionary class-based exemption. It permits refusal of  
access in situations where release of a record could reasonably be expected to disclose  
positions, plans, procedures, criteria or instructions developed for the purpose of  
contractual or other negotiations by or on behalf of a government institution. It also covers  
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REVIEW REPORT 133-2020  
considerations related to negotiations. Examples of the type of information that could be  
covered by this exemption are the various positions developed by a government  
institution’s negotiators in relation to labour, financial and commercial contracts (Guide to  
FOIP, Ch. 4, pp. 136-137).  
[183] The following is a two-part test that can be used when determining if section 17(1)(c) of  
FOIP applies to information in a record:  
1. Does the record contain positions, plans, procedures, criteria, instructions or  
considerations that relate to the negotiations?  
A “position” is a point of view or attitude. An opinion; stand; a way of regarding  
situations or topics; an opinion that is held in opposition to another in an argument  
or dispute.  
A “plan” is a formulated and especially detailed method by which a thing is to be  
done; a design or scheme. A detailed proposal for doing or achieving something;  
an intention or decision about what one is going to do.  
A “procedure” is an established or official way of doing something; a series of  
actions conducted in a certain order or manner.  
“Criteria” are standards, rules, or tests on which a judgement or decision can be  
based or compared; a reference point against which other things can be evaluated.  
“Instructions” are directions or orders.  
Subsection 17(1)(c) extends its protection beyond positions, plans, procedures,  
criteria or instructions to “considerations that relate to those negotiations”. To  
qualify, the information must constitute considerations and they must relate to the  
negotiations.  
A “consideration” is a careful thought; a fact taken into account when making a  
decision. Thus, a record identifying the facts and circumstances connected to  
positions, plans, procedures, criteria or instructions could also fall within the scope  
of this provision.  
“Relate to” should be given a plain but expansive meaning. The phrase should be  
read in its grammatical and ordinary sense. There is no need to incorporate complex  
requirements (such as “substantial connection”) for its application, which would be  
inconsistent with the plain unambiguous meaning of the words of the statute.  
“Relating to” requires some connection between the information and the  
negotiations.  
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REVIEW REPORT 133-2020  
2. Were the positions, plans, procedures, criteria, instructions or considerations  
developed for the purpose of contractual or other negotiations by or on behalf of the  
Government of Saskatchewan or a government institution?  
“Developed” means to start to exist, experience or possess.  
Use of the word “developed” suggests the Legislature’s intention was for the  
provision to include information generated in the process leading up to the  
contractual or other negotiations (for example, draft versions).  
Drafts and redrafts of positions, plans, procedures, criteria, instructions or  
considerations may be protected by the exemption. A public servant may engage in  
writing any number of drafts before communicating part or all of their content to  
another person. The nature of the deliberative process is to draft and redraft until  
the writer is sufficiently satisfied that they are prepared to communicate the results  
to someone else. All the information in those earlier drafts informs the end result  
even if the content of any one draft is not included in the final version.  
“For the purpose of” means intention; the immediate or initial purpose of  
something.  
The negotiations can be conducted by the government or on behalf of the  
government.  
“On behalf of” means “for the benefit of”. A person does something “on behalf of”  
another, when he or she does the thing in the interest of, or as a representative of,  
the other person.  
A “negotiation” is a consensual bargaining process in which the parties attempt to  
reach agreement on a disputed or potentially disputed matter. It can also be defined  
as dealings conducted between two or more parties for the purpose of reaching an  
understanding. 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.  
The contractual or other negotiations can be concluded, ongoing or future  
negotiations.  
(Guide to FOIP, Ch. 4, pp. 132-135)  
[184] Highwayssubmission suggests a change to the test my office uses when determining if  
section 17(1)(c) of FOIP applies to information in a record. The submission also provides  
Highways reasons why it believes section 17(1)(c) of FOIP applies to the information  
redacted on these pages of the record:  
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REVIEW REPORT 133-2020  
The IPC Guide describes a three-part test with respect to determining whether the  
exemption outlined in clause 17(1)(c) fits the responsive records. We propose a slight  
change to that test to more closely reflect the wording of the legislative provision:  
1. (a) Does the record contain positions, plans, procedures, criteria, or instructions?  
(b) Were those positions, plans, procedures, criteria, or instructions developed for  
the purpose of contractual or other negotiations?  
(c) Were they developed by or on behalf of the Government of Saskatchewan or a  
government institution?  
OR  
2. Does the record contain considerations that relate to those negotiations?  
The test in the IPC Guide includes “considerations” in the first question with  
“positions”, “plans”, “procedures”, “criteria” and “instructions”, thus making  
“considerations” subject to (b) and (c). However, the legislative provision is not worded  
that way. It does not say that a record containing considerations that relate to the  
negotiations has to be developed for the purpose of the negotiations or has to be  
developed by or on behalf of the Government of Saskatchewan or a government  
institution. If that were meant to be the case, the word “considerations” would have  
been included in the list with “positions, plans, procedures, criteria or instructions”.  
There could be a record created for another purpose (other than these negotiations), or  
that was not prepared by or on behalf of the Government or a government institution,  
but that nevertheless contains considerations that are relevant to the negotiations and  
need to be kept confidential for the reason that that they factor in the negotiations.  
With respect to 1(a) and (b) of the test, the record is a Central Services report that sets  
out information for the project. It includes a description of the project and the project  
statusThe report indicates that there was a scopeand that this would change the  
completion date and budget, for which they were seeking approval. It is apparent from  
the report that the contractor would need to be engaged in negotiationsThe report  
includes budgetary information and timelines for completion of each of the following  
steps: initiation, planning, execution and closing.  
It is submitted that this record sets out Central Services’ and Highways’ plan for  
changes to the original project (“a formulated and especially detailed method by which  
a thing is to be done”), and its position (“information that may be used in the course of  
negotiations”; “a way of thinking about a particular matter; opinion”) with respect to  
the various components of the project (e.g. timelines, budget). It sets out a procedure  
(an order or method of doing something), instructions (advice and information about  
how to do something) and considerations (thinking about something carefully; the facts  
that need to be thought about). It therefore meets part 1(a) of the test.  
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REVIEW REPORT 133-2020  
One of the purposes of the record would be for contractual and other negotiations…  
Thus, the record set out the parameters for negotiating with the contractor for the  
additional work that would be added to the original project. It therefore meets part 1(b)  
of the test.  
This is a Central Services document, so was developed by the Government of  
Saskatchewan or a government institution, and meets part 1(c) of the test.  
Even if any of the above three components of the test did not apply, it is submitted that  
Part 2 (which is an alternative to Part 1) of the test would apply as this record contains  
considerations that relate to the negotiations for the project, as described above.  
[185] In my office’s Review Report 135-2019 and Review Report 187-2019, I indicated that  
section 17(1)(c) of FOIP was meant to protect positions, plans, procedures, criteria or  
instructions developed for the purpose of contractual or other negotiations and are  
strategies and pre-determined courses of action that would be discussed internally to a  
public body, and not shared with third parties. In this case, it appears the report is providing  
an update on timelines and budgets related to the project that require approval within the  
Government of Saskatchewan. It also appears that there is mention of next steps of  
engaging with external third parties for the project once it has the proper internal approvals  
in place. While Highways submission claims that it is apparent from the report that  
negotiations would occur, Highways has not provided me with information to establish that  
there were any negotiations.  
[186] Section 61 of FOIP provides that the government institution has the burden of proof if it  
claims that access should or must be refused under FOIP (Guide to FOIP, Chapter 2:  
Administration of FOIP”, updated: August 7, 2020 (Guide to FOIP, Ch. 2).  
[187] As the details provided by Highways has not provided me with sufficient information to  
establish that negotiations were occurring, had occurred or would be occurring in the future,  
the burden of proof is not met. As such, I find section 17(1)(c) of FOIP does not apply. See  
Appendix A for details.  
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REVIEW REPORT 133-2020  
11.  
Did Highways properly apply section 18(1)(b) of FOIP?  
[188] In Highwayssubmission regarding Package A, it argued that section 18(1)(b) of FOIP  
applied to a portion of record 15, pages 61 to 63 as follows:  
the Central Services report, on pages 61-63 set out financial information, including  
budget and cost details, and total cash flow, as well as project status, schedule status,  
change request details, changes to issues/risks, and activities planned for next period.  
This is the financial and commercial information of Central Services.  
Since Central Services’ role in property and project management requires negotiating  
prices with Central Services’ clients and third parties, it is submitted that it has a  
proprietary interest in the type of financial and commercial information in the records  
identified, and that information would have, or would be reasonably likely to have,  
monetary value for Central Services.  
[189] Section 18(1)(b) of FOIP provides:  
18(1) A head may refuse to give access to a record that could reasonably be expected  
to disclose:  
(b) financial, commercial, scientific, technical or other information:  
(i) in which the Government of Saskatchewan or a government institution has  
a proprietary interest or right of use; and  
(ii) that has monetary value or is reasonably likely to have monetary value;  
[190] Section 18(1)(b) of FOIP is a discretionary class-based exemption. It permits refusal of  
access in situations where release of a record could reasonably be expected to disclose  
financial, commercial, scientific, technical or other information which the Government of  
Saskatchewan or a government institution has a proprietary interest or a right of use and  
which has monetary value or reasonably likely to have monetary value (Guide to FOIP,  
Ch. 4, p. 164).  
[191] The three-part test that is considered for the application of section 18(1)(b) of FOIP is as  
follows:  
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REVIEW REPORT 133-2020  
1. Does the information contain financial, commercial, scientific, technical or other  
information?  
2. Does the government institution have a proprietary interest or a right to use it?  
3. Does the information have monetary value for the government institution or is it  
reasonably likely to?  
(Guide to FOIP, Ch. 4, pp. 164 to 167)  
[192] The information in the report at issue discusses the status of the project as well as budgeted  
costs for the project at the specified address.  
[193] In my office’s Review Report 196-2020, my office discussed the application of section  
18(1)(b) of FOIP to tables that contained “project costs”:  
[16] The portions of the record released to the Applicant indicate the tables of  
information contain elements such as “Fiscal Year Estimates”, “Fiscal Year Actuals”,  
and “Total Expenditures”. These are in relation to three separate projects concerning  
the junction of highways 35 and 335, and that are specific to “Highways and Bridges”.  
This qualifies as financial information, so the first part of the test is met.  
[17] Proprietary means of, relating to, or holding as property (Guide to FOIP, p. 165).  
[18] Proprietary interest is the interest held by a property owner together with all  
appurtenant rights, such as a stockholder’s right to vote the shares. It signifies simply  
“interest as an owner” or “legal right or title” (Guide to FOIP, p. 165).  
[19] Owner means someone who has the right to possess, use, and convey something;  
a person in whom one or more interests are vested (Guide to FOIP, p. 165).  
[20] Right of use means a legal, equitable, or moral title or claim to the use of property,  
or authority to use (Guide to FOIP, p. 166).  
[21] Monetary value requires that the information itself have an intrinsic value. This  
may be demonstrated by evidence of potential for financial return to the government  
institution. An example of information that is reasonably likely to have monetary value  
might include a course developed by a teacher employed by a school board (Guide to  
FOIP, p. 166).  
[22] Reasonably likely to implies that the question be considered objectively. This  
means that there must be evidence that will, on a balance of probabilities, support the  
necessary finding (Guide to FOIP, p. 167).  
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REVIEW REPORT 133-2020  
[25] In Review Report 185-2016 concerning the Saskatchewan Power Corporation  
(SaskPower), I stated the following at paragraph [24] regarding monetary value and the  
distinction between monetary value and information that may be beneficial in some  
sense:  
[24] However, I am not persuaded that the contract itself would have any monetary  
value for SaskPower. SaskPower has only demonstrated that other organizations  
would find monetary value in the contract. Order 00-41 of the Office of the  
Information and Privacy Commissioner of British Columbia commented on this  
issue with respect to a similar exemption in its legislation. It stated: “There is, in  
my opinion, a clear distinction between information (including intellectual  
property) that the public body may wish to sell or license, and that reasonably could  
be said to have monetary value, and information that would simply be beneficial in  
some sense, or of interest, to a competitor.”  
[26] Highways may “own” the forecast costs to make budgetary decisions, and may  
consistently treat such information confidentially. Highways has not, however,  
provided evidence to support the notion that disclosure of the information would  
somehow deprive it of monetary gain. Rather, it appears Highways’ interest in the  
information would be for the purposes of acquiring goods or services for the public  
through a competitive process, and not for monetary gain in a commercial sense. As  
with the SaskPower example from the preceding paragraph, external organizations  
competing for contracts may find value in knowing previous forecast costs, but for the  
purposes of this provision, it would not apply to Highways in the same way. As the  
second and third parts of the test have not been met, I find Highways has not properly  
applied subsection 18(1)(b) of FOIP to pages 36, 37 and 38 of the record. I will,  
however, continue my review of the other FOIP exemptions Highways has applied to  
the same portions of these pages.  
[194] I adopt this analysis. Highways has not provided sufficient supporting documentation to  
show that section 18(1)(b) of FOIP would apply. As noted earlier, Highways has the burden  
of proof to establish that access should or must be refused. As Highways has not provided  
sufficient details, the burden of proof is not met. As such, I find section 18(1)(b) of FOIP  
does not apply. See Appendix A for details.  
12.  
Did Highways properly apply section 15(1)(m) of FOIP?  
[195] In Highways submission regarding Package B, it argued that section 15(1)(m) of FOIP  
applied to a portion of pages 30, 31, 42, 43 and 46. Section 15(1)(m) of FOIP provides:  
15(1) A head may refuse to give access to a record, the release of which could:  
59  
REVIEW REPORT 133-2020  
(m) reveal the security arrangements of particular vehicles, buildings or  
other structures or systems, including computer or communication systems, or  
methods employed to protect those vehicles, buildings, structures or systems.  
[196] Highwayssubmission argues that section 15(1)(m) of FOIP applies because the  
information on the diagrams showed the location of a critical piece of the building’s  
infrastructure that “only those with a need to know its location should have access to this  
information.”  
[197] Section 15(1)(m) of FOIP is a discretionary class-based exemption. It permits refusal of  
access in situations where release of a record could reveal the security arrangements of  
particular vehicles, buildings or other structures or systems, including computer or  
communication systems, or methods employed to protect those vehicles, buildings,  
structures or systems (Guide to FOIP, Ch. 4, p. 89).  
[198] My office uses the following two-part test to determine if section 15(1)(m) of FOIP applies.  
However, only one of these questions needs to be answered in the affirmative for the  
exemption to apply:  
1. Could release reveal security arrangements (of particular vehicles, buildings, other  
structures or systems)?  
2. Could release reveal security methods employed to protect the particular vehicles,  
buildings, other structures or systems?  
(Guide to FOIP, Ch. 4, p. 89-90).  
Package B, Record 7, Pages 30 and 31  
Package B, Record 16, Pages 42 and 43  
Package B, Record 17, Page 46  
[199] Highways’ submission only stated that the information needed to be redacted for “security  
reasons”. Beyond that, it did not specify how this information could reveal security  
arrangement or security methods. I find that Highways has not provided sufficient  
60  
REVIEW REPORT 133-2020  
information to meet the burden of proof to establish that access should or must be refused  
pursuant to section 15(1)(m) of FOIP.  
[200] Additionally, it is my understanding that the Applicant has received a similar floor plan  
that contained information on the location of this infrastructure as a result of a previous  
review by my office from a different government institution.  
[201] I find that section 15(1)(m) of FOIP does not apply. See Appendix A for details.  
IV  
FINDINGS  
[202] I find that I have jurisdiction and authority under FOIP to undertake this review.  
[203] I find that Highways has not provided sufficient detail of its search efforts to find that a  
reasonable search was conducted.  
[204] I find that section 29(1) of FOIP applies to a portion of information on pages 24, 25, 89,  
103 and 104 of Package A of the record. See Appendix A for details.  
[205] I find that section 19(1)(b) of FOIP applies to the withheld portion of information on page  
78 of Package A of the record. See Appendix A for details.  
[206] I find that Highways did not meet the burden of proof for sections 15(1)(m), 17(1)(c) and  
18(1)(b) of FOIP.  
[207] I find that Highways did not appropriately apply sections 15(1)(m), 16(1), 17(1)(a),  
17(1)(b)(i), 17(1)(c), 18(1)(b), 19(1)(b), 22(a) and 29(1) of FOIP to remaining withheld  
portions of the record. See Appendix A for details.  
61  
REVIEW REPORT 133-2020  
V
RECOMMENDATIONS  
[208] I recommend Highways conduct another search for all records requested by the Applicant  
within 30 days of the issuance of this Report and issue a response that includes details of  
its search efforts. This should be provided to my office and the Applicant.  
[209] I recommend Highways release the records, with the exception of the portions of the record  
where I have found an exemption was appropriately applied. See Appendix A for details.  
Dated at Regina, in the Province of Saskatchewan, this 5th day of April, 2022.  
Ronald J. Kruzeniski, Q.C.  
Saskatchewan Information and Privacy  
Commissioner  
62  
REVIEW REPORT 133-2020  
Appendix A  
Package Record Page  
Description Exemptions  
Does the  
Release or  
Numbers of Record  
Applied  
Exemption Withhold  
Apply?  
A
1
Page 4  
Email  
Email  
Email  
Non-  
No  
No  
No  
Release  
Release  
Release  
Responsive;  
Sections  
17(1)(a) and  
17(1)(b)(i) of  
FOIP  
A
2
Pages 8  
and 9  
Non-  
Responsive;  
Sections  
17(1)(a) and  
17(1)(b)(i) of  
FOIP  
Non-  
Responsive;  
Section  
A
A
3
5
Page 13  
17(1)(b)(i) of  
FOIP  
Pages 24 Attachment Section 29(1)  
and 25 to Email of FOIP  
Section  
29(1) of  
FOIP  
Continue to  
withhold the  
redacted  
applies to  
information,  
information with the  
related to an exception of  
employee’s the portion  
employment of the first  
status  
redaction on  
redacted on page 25  
pages 24  
and 25.  
related to  
the location  
of an  
Section  
29(1) of  
employee’s  
workspace.  
FOIP does  
not apply to  
the portion  
of the first  
redaction on  
page 25  
related to  
the location  
of an  
63  
REVIEW REPORT 133-2020  
Package Record Page  
Description Exemptions  
Does the  
Release or  
Numbers of Record  
Applied  
Exemption Withhold  
Apply?  
employee’s  
workspace.  
A
A
A
9
Page 33  
Page 35  
Email  
Email  
Non-  
Responsive;  
Section  
17(1)(b)(i) of  
FOIP  
Non-  
Responsive;  
Sections 16(1)  
and 17(1)(a) of  
FOIP  
Pages 38 and  
39: Non-  
Responsive;  
Section  
No  
No  
No  
Release  
Release  
Release  
10  
11  
Pages 38, Email and  
39 and 41 one  
to 54  
attachment  
17(1)(b)(i) of  
FOIP  
Pages 41 to 54:  
Sections  
19(1)(b) and  
29(1) of FOIP  
Non-  
A
12  
Page 55  
Email  
No  
Release  
Responsive;  
Sections  
17(1)(a) and  
17(1)(b)(i) of  
FOIP  
A
A
14  
15  
Pages 58 Email  
and 59  
Non-  
Responsive;  
Section  
17(1)(b)(i) of  
FOIP  
No  
No  
Release  
Release  
Pages 61 Attachment Pages 61 and  
to 63  
to Email  
62: Non-  
Responsive;  
Sections  
17(1)(b)(i),  
17(1)(c) and  
18(1)(b) of  
FOIP  
64  
REVIEW REPORT 133-2020  
Package Record Page  
Description Exemptions  
Does the  
Release or  
Numbers of Record  
Applied  
Exemption Withhold  
Apply?  
Pages 63: Non-  
Responsive;  
Sections 16(1),  
17(1)(b)(i),  
17(1)(c) and  
18(1)(b) of  
FOIP  
A
A
18  
19  
Page 69  
Email  
Non-  
Responsive;  
Section  
17(1)(b)(i) of  
FOIP  
Non-  
No  
No  
Release  
Release  
Pages 75 Email  
and 76  
Responsive;  
Sections  
17(1)(a) and  
17(1)(b)(i) of  
FOIP  
A
A
A
20  
23  
24  
Page 78  
Page 85  
Email  
Email  
Section  
19(1)(b) of  
FOIP  
Section  
19(1)(b) of  
FOIP  
applies.  
No  
Withhold  
Release  
Non-  
Responsive;  
Section 29(1)  
of FOIP  
Pages 88 IBC Update Non-  
to 90 Responsive;  
Section  
29(1) of  
FOIP  
Release  
record, with  
the  
Section 29(1)  
of FOIP  
applies to  
exception of  
employment the  
status of an information  
employee  
recorded on  
found on the the third  
third row of row of page  
page 89  
under the  
“other  
89 under the  
“other  
notes”  
notes”  
column.  
column.  
Section  
29(1) does  
not apply to  
65  
REVIEW REPORT 133-2020  
Package Record Page  
Description Exemptions  
Does the  
Release or  
Numbers of Record  
Applied  
Exemption Withhold  
Apply?  
any other  
information  
on these  
pages.  
A
A
25  
26  
Page 91  
Email  
Non-  
Responsive;  
Sections  
17(1)(b)(i) and  
22(a) of FOIP  
Page 93: Non-  
Responsive  
No  
Release  
Pages 93, Email and  
94, 103  
and 104  
Pages 93  
and 94: No  
Pages 93  
and 94:  
Release  
two  
attachments  
Page 94: Non-  
Responsive;  
Section  
Pages 103  
and 104:  
Pages 103  
and 104:  
17(1)(b)(i) of  
FOIP  
Section  
29(1) of  
FOIP  
Continue to  
withhold the  
redacted  
Pages 103 and  
104: Section  
29(1) of FOIP  
applies to  
information,  
information with the  
related to an exception of  
employee’s the portion  
employment of the  
status  
redaction on  
redacted on page 104  
pages 103  
and 104.  
related to  
the location  
of an  
Section  
29(1) of  
employee’s  
workspace.  
FOIP does  
not apply to  
the portion  
of the  
redaction on  
page 104  
related to  
the location  
of an  
employee’s  
workspace.  
No  
B
1
Page 1  
Email and  
three  
Section 29(1)  
of FOIP  
Release  
attachments  
66  
REVIEW REPORT 133-2020  
Package Record Page  
Description Exemptions  
Does the  
Release or  
Numbers of Record  
Applied  
Exemption Withhold  
Apply?  
B
2
Pages 17, Email and  
Pages 17:  
No  
Release  
19, 20  
and 22  
two  
Section 29(1)  
attachments of FOIP  
Pages 19, 20  
and 22: Section  
17(1)(a) of  
FOIP  
B
B
B
B
B
3
4
5
6
7
Page 23  
Page 24  
Page 25  
Email  
thread  
Email  
thread  
Email  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
No  
No  
No  
No  
No  
Release  
Release  
Release  
Release  
Release  
Pages 26 Email  
to 28 thread  
Pages 29 Email and  
Page 29:  
to 31  
two  
Section 29(1)  
attachments of FOIP  
Pages 30 and  
31: Sections  
15(1)(m) and  
17(1)(a) of  
FOIP  
B
B
B
B
B
B
B
B
8
Page 32  
Page 33  
Page 34  
Page 36  
Page 37  
Page 38  
Page 39  
Page 40  
Email  
Email  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
No  
No  
No  
No  
No  
No  
No  
No  
Release  
Release  
Release  
Release  
Release  
Release  
Release  
Release  
9
10  
11  
12  
13  
14  
15  
Email  
thread  
Email  
thread  
Email  
thread  
Email  
thread  
Email  
Email  
67  
REVIEW REPORT 133-2020  
Package Record Page  
Description Exemptions  
Does the  
Release or  
Numbers of Record  
Applied  
Exemption Withhold  
Apply?  
B
16  
Pages 41 Email  
to 44 thread and  
Page 41:  
Section 29(1)  
of FOIP  
No  
Release  
three  
attachments  
Pages 42 and  
43: Sections  
15(1)(m) and  
17(1)(a) of  
FOIP  
Page 44:  
Section  
17(1)(a) of  
FOIP  
B
17  
Pages 45 Email  
Page 45:  
No  
Release  
and 46  
thread and  
Sections  
one  
attachment  
19(1)(b) and  
29(1) of FOIP  
Page 46:  
Sections  
15(1)(m) and  
17(1)(a) of  
FOIP  
B
B
18  
19  
Page 47  
Page 48  
Email  
Section 29(1)  
of FOIP  
Section 29(1)  
of FOIP  
No  
No  
Release  
Release  
Email  
thread  
68  


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