Exemptions: Exercise of discretion
February 28, 2018
This notice provides guidance to government institutions subject to the Access to Information Act (the Act) of the Office of the Information Commissioner’s (OIC) interpretation and assessment of the exercise of discretion.
The notice is intended to assist officials in institutions in providing representations on this issue to the OIC in the course of complaint investigations. It is also intended to assist requesters in understanding the exercise of discretion that must be undertaken by institutions.
Application of discretionary exemptions
Discretionary exemptions allow institutions to disclose a record, despite the existence of grounds for applying the exemption. Discretionary exemptions are introduced by the words: “(A) head may refuse to disclose…”
When making decisions regarding the use of discretionary exemptions in responding to an access request, institutions must first determine whether or not the exemption can apply.
Once it has been determined that a discretionary exemption could apply, decision-makers must then go on to ask whether, having regard to all relevant interests, including the public interest in disclosure, disclosure should be made. This means that the decision-maker must actually consider and weigh all relevant factors for and against disclosure, and must not consider improper or irrelevant factors.
Relevant factors may include:
- the general purpose of the Act;
- the purpose of the exemption and the extent to which applying the exemption would advance that purpose;
- the facts and circumstances of the specific case;
- the nature of the record and whether the record is particularly sensitive or significant;
- the importance of the record to the requester and whether there is a sympathetic or compelling reason to release the record;
- the passage of time and/or the historical nature of the record;
- whether disclosure of the information would increase public confidence in the operations of the institution; and
- the prior public disclosure of the information.
Decision-makers cannot rely on irrelevant considerations such as an expectation of harm arising from disclosure that is based on mere speculation, or the prospect of embarrassment arising from disclosure of the information.
Assessment of the Exercise of Discretion
When a complaint involving a discretionary exemption is investigated by the OIC, the institution bears the onus in terms of establishing that the information fits within the scope of the exemption and, if so, that it reasonably exercised its discretion to rely on the exemption to withhold information.
In its assessment of the exercise of discretion, the OIC will determine:
- who made the decision to apply the discretionary exemption(s) – the decision-maker must be the head of the institution or the head’s authorized delegate;
- whether the decision-maker was aware of the discretion to release exempted information and actually exercised that discretion; and
- whether the decision-maker exercised that discretion reasonably.
An assessment of reasonableness will take into account:
- the purposes of the Act, including the public interest in disclosure;
- whether the reasons supporting the exercise of discretion are sufficient;
- whether those reasons are supported by facts; and
- whether the decision in its entirety is understandable and justifiable.
It is important that institutions properly document their decisions in order to be in a position to respond to the OIC’s investigation. Decision-makers cannot simply state that they have taken all the relevant factors into consideration; our office will expect them to demonstrate that they have carefully considered the factors in favour of disclosure in a complete and transparent fashion, while taking into account the objectives of the Act.
If the exercise of discretion is found to be unreasonable
If the OIC is not satisfied that discretion was exercised reasonably when the institution responded to the request, our office can ask that the exercise of discretion be revisited during the course of the investigation.
If we continue to be of the opinion that discretion was not reasonably exercised, the Commissioner can make formal recommendations to the head of the institution pursuant to s. 37(1) of the Act. These recommendations can include:
- that discretion be exercised anew which could result in either disclosure of the information or reasons provided to the Commissioner for exercising discretion in favour of maintaining the application of the exemptions; or
- that records be disclosed in light of the absence of evidence that the discretion was exercised reasonably.