Information Commissioner’s guidance
Interpretation: Exercise of discretion
Updated November 6, 2018
Whether an institution is required to exempt information from release under the Access to Information Act in response to an access to information request or has some flexibility to decide whether to release the information depends on the type of exemption the institution is claiming.
The exemptions in the Act fall into two categories:
- Mandatory: These exemptions require institutions to withhold information that meets the test set out in the exemption and contain the phrase “shall refuse to disclose.”
- Discretionary: These exemptions allow institutions to disclose information when the factors in favour of disclosure outweigh the factors in favour of withholding the information, even when it meets the test set out in the exemption. These exemptions contain the phrase “may refuse to disclose.”
This guidance document sets out how the Office of the Information Commissioner (OIC) determines as part of a complaint investigation whether an institution reasonably exercised its discretion when withholding information under a discretionary exemption.
Assessing the exercise of discretion
Once the OIC is satisfied that the information meets the test set out in the exemption, it then determines whether the institution reasonably exercised its discretion to withhold the information. The OIC requires evidence of all three of the following before finding that an institution exercised its discretion reasonably.
1. Valid decision-maker
Was the person who made the decision to apply the exemption the head of the institution or the head’s authorized delegate?
No one else may make such a decision.
2. Decision-maker aware of responsibility and took action
Was that person aware they have discretion to release exempted information and did they actually exercise it?
The person must show that they are familiar with the access request, and that they understand and have considered the relevant considerations before taking a decision.
3. Decision-maker acted reasonably
Did that person exercise their discretion reasonably?
The OIC considers the following when assessing reasonableness:
- the purpose 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 to apply the exemption is understandable and justifiable in its entirety.
Factors for and against disclosure
Institutions are required to carefully consider all relevant factors for and against disclosure. These factors may include the following:
- 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 records in question and whether they are particularly sensitive or significant;
- the importance of the records to the requester and whether there is a sympathetic or compelling reason to release them;
- the passage of time and/or the historical nature of the records;
- whether disclosure would increase public confidence in the operations of the institution; and
- any prior public disclosure of the information.
Institutions may not rely on irrelevant considerations, such as an expectation of harm arising from disclosure based on mere speculation, or the prospect of embarrassment.
When the OIC finds the exercise of discretion to be unreasonable
When the OIC is not satisfied that the institution exercised its discretion reasonably, it may ask the institution to revisit the matter. When the institution chooses not to do so or the OIC is of the view that the institution continues to exercise its discretion unreasonably, the Information Commissioner may send the head of the institution a letter under section 37 containing formal recommendations to resolve the matter. These recommendations could include the following:
- that the institution exercise its discretion anew, which could result in either the institution’s disclosing the information or providing reasons to the Information Commissioner to justify exercising discretion to withhold the information; or
- that the institution disclose the records, due to the lack of evidence that it exercised its discretion reasonably.