Discretion (General)

The Provision:

This grid applies to discretion in general.

Preliminary matters:

The Access to Information Act, R.S.C. 1985, c. A-1, (the Act) gives any Canadian Citizen or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada a right (of access) to most records under the control of the Federal Government. More specifically, our Act provides for access to all information in records controlled by government institutions listed in Schedule I of the Act unless there is a specific provision in the Act that permits or requires the head of the government institution to refuse to disclose the information, or unless the records (or part thereof) are excluded under section 68 or 69.

The Act contains two types of exemptions, commonly referred to as mandatory and discretionary exemptions. The consequence of a mandatory exemption (those beginning "the head of a government institution shall refuse to disclose...") is that once it has been determined that the exemption applies, disclosure of the information must be refused. As a result, unless any override applies (see below) the government institution in control of the information will be under a legal obligation to refuse access. The consequence of a discretionary exemption (those beginning "the head of a government institution may refuse to disclose...") is to permit an institution to refuse disclosure. Once it has been determined that the exemption applies, the institution has the option to rely on the exemption or not.

The discretion to disclose or withhold information can only be exercised by the head of a government institution or by an individual that the head has designated in writing for this purpose.

When reviewing the application of a discretionary exemption, it is important to remember that the government institution has the evidentiary burden of showing not only that the information falls within the scope of the exemption, but that the head of the institution or his/her delegate properly exercised their discretion in deciding not to disclose the information.1 If there is no evidence establishing that the institution head considered whether or not to disclose information subject to a discretionary exemption, or if the evidence about why they decided to refuse disclosure indicates the head relied on irrelevant or unreasonable factors or on improper considerations or that the decision is not consistent with the objects of the Act (that of extending disclosure of government information subject to limited and specific exemptions), then it is open to our office, and to the Federal Court on a review, to question or reject the decision to refuse disclosure.

Discretionary Exemptions:

Discretion must be exercised under the following exemptions in the Act:

  • 14 Federal-Provincial Affairs
  • 15 (1)International Affairs and Defence
  • 16 (1)Law Enforcement & Investigations
  • 16 (2)Security
  • 17 Safety of individuals
  • 18 Economic Interests of Canada
  • 21 Advice/Recommendations
  • 22 Testing or Audits
  • 23 Solicitor/client privilege
  • 26 Information to be published

Claiming a discretionary exemption requires a two step process. First, the head must determine whether the record comes within the description that is contemplated by the statutory exemption invoked in the particular case. Second, if it does, the head must determine whether the record should nevertheless be disclosed.2

The Federal Court of appeal has now confirmed that the burden of proof on a government institution to show an exemption applies contained in section 47 of the Act encompasses both the burden of proving that the conditions of the exemption are met and that the discretion conferred on the head of the government institution was properly exercised.3

The Exercise of Discretion:

The exercise of discretion is fundamental to achieve intention of the Access to Information Act. The guiding principles of the Act are set out in section 2, the purpose clause:

  • that government information should be available to the public;
  • that necessary exceptions to the right of access should be limited and specific; and,
  • that decisions on the disclosure of government information should be reviewed independently of government.

The Supreme Court of Canada has charaterized the underlying purposes of the Access to Information Act in the following way, and has stated that these underlying objectives, as well as the principles set out in section 2, must be taken into account when determining whether an exemption from disclosure applies:

The overarching purpose of access to information legislation … is to facilitate democracy. It does so in two related ways. It helps to ensure, first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry. … Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable. Consequently, while the Access to Information Act recognizes a broad right of access to "any record under the control of a government institution" (s. 4(1)(b)), it is important to have regard to the overarching purposes of the Act in determining whether an exemption to that general right should be granted.

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, per LaForest, J. [Emphasis Added]

The purposes and objectives of the Act are particularly important when determining whether a discretionary exemption applies. This is because when institution heads exercise their discretion to apply a discretionary exemption, or to invoke one of the overrides (see below), they must consider the objects of the Act as a whole and the purpose of the exemption itself in relation to the circumstances at hand. It is not enough for a government institution to broadly categorize the requested information as subject to a discretionary exemption; rather, the institution head must consider whether, in light of the objects of the legislation and the exemption itself, the information should be disclosed even though the exemption applies.

The exercise of discretion allows the head of a government institution to demonstrate that the institution is operating in the spirit of the legislation. It is not simply a formality where the head considers the issues before routinely saying no. The head must show that the relevant factors were considered and, if the decision it is to withhold the information, that there were compelling reasons to support the decision. In exercising discretion, the head of the public body may also want to consult with other public bodies that may have an interest in the requested records.

The discretion given to the institutional head is not unfettered. It must be exercised in accordance with recognized legal principles. It must also be used in a manner which is in accord with the conferring statute (i.e., in exercising his discretion, the head must be governed by the principles that information should be available to the public and that exemptions to access should be limited and specific). Accordingly, it is incumbent upon the institutional head to have regard to the policy and object of the Access to Information Act when exercising his or her discretion.

Some factors must generally be considered when exercising discretion. These include:

  • the general purpose of the legislation;
  • the wording of the discretionary exemption and the interests which the exemption attempts to protect;
  • whether the requestor's request could be satisfied by severing the record and by providing the requestor with as much information as reasonably practicable;
  • the historical practice of the institution with respect to the release of similar types of records (i.e., the Act is not intended to limit in any way access to the type of government information that is normally available to the public);
  • the age of the record;
  • the public interest in disclosing the record; and
  • the availability of the information ( where the information requested is already available elsewhere to the public, there may be need for exemption under this exemption).

In recognition of this principle, the discretionary exceptions require the head of a government institution to determine whether harm is likely to result from release of information that falls within the exception. If no harm is apparent, a government institution should release the information in keeping with the spirit and intent of the Act. On occasion, government institutions may wish to release the information even though it technically qualifies for exemption. This could happen in cases where the benefits of disclosure outweigh the harm or where a combination of factors makes the harm negligible. Other factors which the institution should take into account include the degree of public interest in the information, whether disclosure would assist or shed light on issues under public discussion, whether disclosure of the information would benefit an individual or group, whether there are compassionate grounds for disclosure or whether the circumstances surrounding the request are such that disclosure would be merited. The Grid on Investigating the Use of Discretionary Exemptions and Grids for each discretionary exemption and for each section subject to an override set out areas where specific factors or considerations relevant to the exercise of each discretion may apply.

Following consideration of these factors and any other relevant circumstances, the head decides whether or not to disclose part or all of the requested information that falls under the exemption, bearing in mind that the goal is to release as much information as possible without causing harm. If harm from the release of certain information outweighs any benefit, that information may be severed and the rest released. The process of severing plays an integral part in the proper exercise of discretion in the spirit of the legislation.

The Overrides:

A mandatory exemption can be partially or completely overridden in the following defined circumstances:

  • 13 (2)Information obtained in confidence
  • 19 (2)Personal information
  • 20 (5)Third party - Consen
  • 20 (6)Third party - Public interest

Each of the above overrides provide that in given circumstances, the head of a government institution 'may' disclose personal information if these circumstances are met. The Supreme Court of Canada has charaterized the decision of an institution head to invoke the override in subsection 19(2) as discretionary in nature.4

Institution heads should first determine whether there is enough evidence to suggest that one of the overrides would apply before claiming sections 13, 19, and 20. It is not sufficient for a department to merely state that they are unaware or that they just don't know if the override applies. Rather, the department should be in a position to state what activities were undertaken in this regard.5. The institution must show, for example, that it has made reasonable efforts to obtain consent, to determine the public availability of a record, and that the head has exercised his/her discretion properly in relation to the public interest override.6

Questioning the Exercise of Discretion by an Institution:

Courts will require institution heads to exercise their discretion in good faith, without bias and for purposes rationally connected to the purposes of the legislation.7 When reviewing discretionary decisions, the Courts have typically limited their assessment to these factors (good faith, without bias, for reasons consistent with the purpose of the statute) and to ensuring that the institution head has turned his or her mind to the issue of whether to disclose the information or apply the exemption. (This approach is gradually evolving8. For example, the Federal Court of Appeal has now confirmed that government institutions have the burden of proof in showing that the institution head properly exercised his/her discretion to refuse disclosure, reversing prior findings that the requestor must raise a prima facie case that the discretion had been exercised improperly before a Court will review an institution head's decision on these grounds.9 Nevertheless it is likely that the Courts will still limit the circumstances in which they will interfere with the determination made by an institution) head under the exercise of his or her discretion.

The role of the office of the Information Commissioner is different than that of a reviewing Court. Investigators are not subject to the restrictions of a reviewing Court in relation to the exercise of discretion. It is squarely within the Commissioner's mandate to look carefully at the manner in which discretion was exercised and to urge a different decision on the institution head where circumstances warrant it.

Investigators should therefore not only ensure that institutions have considered whether to disclose information subject to a discretionary exemption, but also whether a decision to refuse disclosure is reasonable given: (1) the circumstances of each case, (2) the purposes of the Act, and (3) the purposes of the exemption. In addition, the complaint report of the Information Commissioner is given serious weight by the Courts.10 If the report sets out and assesses the factors relevant to the exercise of discretion in a particular situation, it is likely to enhance a Court's assessment of the exercise of discretion by the institution head.

When reviewing complaints relating to discretionary exemptions, the Commissioner can take the following actions:

  • institutions can be required to provide the factors that were considered in the exercise of discretion;
  • the Commissioner can insist that discretion be exercised where there is no evidence that the responsibility was taken seriously.
  • where the head has not properly considered all the factors relevant to the circumstances of the case, the Commissioner may request the head to reconsider his or her exercise of discretion.

Case Law

1) Federal

Before claiming a discretionary exemption, two decisions are necessary: first, does the record come within the description that is contemplated by the statutory exemption invoked in a particular case; and second, if it does, should the record nevertheless be disclosed.11

While some difficulties may be encountered in attempting to ascertain whether an override applies, it is not sufficient for the head of a government institution to merely state that they are unaware or that they just don't know if the exceptions apply. Rather, they should be in a position to state what activities and initiatives were undertaken in this regard.12

A request for personal information subject to the consent override in section 19(2) Privacy Act [section 13(2) Access to Information Act] "includes a request to the head of a government institution to make reasonable efforts to seek the consent of the third party who provided the information." (Emphasis added). The government institution has the evidentiary burden of showing that the exception for consent does not apply given the inability of the requestor to know who to ask for consent or what the information consists of.13

In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R, the Supreme Court of Canada majority held that the Minister of Finance abused the discretion conferred by subsection 19(2) of the Act by placing the burden of showing why personal information should be disclosed under the public interest override on the requestor. The Court majority held that subsection 19(2) contains no such direction and that the Minister himself should have undertaken the weighing of the public interest in disclosure against the privacy interests of the individuals concerned as directed by sub-paragraph 8(2)(m)(i) of the Privacy Act.

In Ruby v. Canada (Solicitor General RCMP), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.), the Federal Court of Appeal confirmed that where sub-paragraph 8(2)(m)(i) of the Privacy Act applies, the institution head must undertake a weighing of the competing interests behind the public interest override, but the manner in which the weighing of interests is conducted is within the discretion of the head of the institution. As it was unclear whether the government institution had conducted any kind of discretionary balancing of public interest and privacy under sub-paragraph 8(2)(m)(i), the matter was remitted to the Trial Judge to determine whether the exemption from disclosure that was subject to the override had been properly applied.

The Federal Court of Appeal overturned a finding of the Trial Division

that certain records in personal information banks pertaining to security investigations were exempt pursuant to paragraph 22(1)(a) of the Privacy Act [16(1)(a) Access toInformation Act], on grounds that the Trial Judge had not reviewed the exercise of discretion by the institution head under the paragraph 22(1)(a) exemption. In the Ruby case, the government institution had invoked subsection 16(2) of the Privacy Act, the equivalent of subsection 10(2) Access to Information Act, to refuse to confirm or deny the existence of records responsive to the request. The Court noted that, in these and similar circumstances under the Act where the requestor has no access to the records in question, and no knowledge of their contents of the records, it would be unfair to impose an evidentiary burden on the requestor to show that the head's discretion had not been exercised properly. The Court held that a requestor need not show reasons or proof that the institution head had exercised his/her discretion improperly, and that the onus was instead on the institution to show 1) that the discretion to refuse disclosure was in fact exercised, i.e., that the head had considered whether to refuse or allow disclosure of the information once it was determined the records fell within the scope of the exemption, and 2) that it was exercised in accordance with proper principles.14

The Federal Court has the power to order the head to exercise his/her discretion in respect of exemptions. Where the head has not properly considered all the factors, the Court may order the head to reconsider his/her exercise of discretion. Institutions that do not provide the factors that were considered in the exercise of discretion can be ordered to do so.15

The discretion given to the institutional head is not unfettered. It must be exercised in accordance with recognized legal principles. It must also be used in a manner which is in accord with the conferring statute. Accordingly, it is incumbent upon the institutional head (or delegate) to have regard to the policy and purpose of the Access to Information Act when exercising his discretion.16

Before claiming an exemption, the head of a government institution should first determine whether there is enough evidence to suggest that one of the overrides would apply. If there is enough evidence, the head must decide whether or not he/she will exercise discretion to disclose. This discretion cannot be exercised in the first instance by the Court (but as the Dagg v. Canada and Rubin v. CHMC case demonstrates, the Court can order the head to exercise his/her discretion).17

As long as there is nothing improper or inappropriate in the exercise of the decision-maker's discretion, the Courts will generally not second-guess the head's discretion. While giving deference to the head's decision, the Court will look at the document and the surrounding circumstances. The Court will then consider whether the discretion was exercised in good faith and for a reason which was rationally connected to the purpose for which the discretion was granted.18 The Courts have held, however, that the report of the Information Commissioner (on the applicability of an exemption, the exercise of discretion or the applicability of an override) should be given serious weight given the expertise of the Commissioner and the review the Commissioner's office conducts through investigation of complaints about a refusal to disclose.

2) Ontario

(Orders #56, 58, 92, 135, 141, 162, 163, 200, 203, 210, P-211, P-220, P-403, P-413, M-71, M-101)

  • The Commissioner has the power to order the head to exercise his/her discretion in respect of exemptions. Where the head has not properly considered all the factors, the Commissioner may order the head to reconsider his/her exercise of discretion. Institutions that do not provide the factors that were considered in the exercise of discretion can be ordered to do so.

(Order #M-59)

  • The Commission has the duty to review the decision of an institution to claim a discretionary exemption by determining whether the record falls within the discretionary exemption.

(Orders #200, P-241)

  • Where the head has exercised discretion, the Commissioner will look very carefully at the manner in which it was done to ensure that it was accomplished in accordance with established legal principles.

(Order 58, P-344)

  • The head's exercise of discretion must be made in full appreciation of the facts of the case, and upon proper application of the applicable principles of the law. In exercising his discretion, the head must be governed by the principles that information should be available to the public and that exemptions to access should be limited and specific. The head must also consider the individual circumstances of the request.

(Order #56)

  • A head must apply his or her discretion to each record and cannot rely simply on 'practical experience' to exempt a group of records under this exemption.

(Order 220)

  • When exercising his discretion, the head must rely on factors related to the particular discretionary exemption considered. It is not acceptable for the head of an institution to consider the factors raised by one discretionary exemption in the exercise of his discretion pursuant to another discretionary exemption

(Order #52)

  • As long as there is nothing improper or inappropriate in the exercise of a decision-maker's discretion, it should not be interfered with on appeal.19

(Order #154)

  • Where there was nothing to indicate that the discretion was exercised improperly, the head's decision will not be disturbed on appeal.

(Orders #170, 195, 199, P-262)

  • Where the head was found to have not exercised the discretion properly, he/she was ordered to reconsider the exercise of the discretion and to provide written reasons.

(Order #P-403)

  • The Commission found that the institution had not properly exercised its' discretion when it refused to disclose a hand-written note to a requester in circumstances where the requester had already received a typewritten version that was essentially the same from the institution. The institution was ordered to reconsider the exercise of its discretion.

(Order #213)

  • The Commissioner will review the manner in which the institution exercises its discretion to refuse to confirm or deny the existence of a record. Where this discretion is exercised in accordance with established legal principles, it will not be interfered with.

(Order #M-150)

  • In this case, the Commission ordered the institution to confirm or deny the existence of the records in question because it had not provided any representations in support of the refusal to confirm or deny. The Commission noted that a requester who is denied the right to know whether a record exists or not is in a very different position than a requester who is denied access to a record. The Commission ruled that the discretion that the institution has in this regard should be exercised in only rare cases. Where there is a discretionary exemption, in the absence of representations in support of the exemption, the application of the exemption will not be upheld.

(Orders #106, 170 (at pages 55-56), 195, 199, 213, P-254, P-255, P-262, P-308, P-344)

  • In any case where the head refuses to confirm or deny the existence of the record, the discretion must be exercised in accordance with established legal principles.

(Order #P-344)

  • The application of section 14 in an inflexible way to all cases involving a particular type of record would represent an improper exercise of discretion. The head must take into consideration factors personal to the requester and must ensure that the decision conforms to the policies, objects and provisions of the Act.

3) British Columbia

(Order #1)

  • The head's exercise of discretion must be made in full appreciation of the facts of the case, and upon proper application of the applicable principles of the law. In exercising his discretion, the head must consider all relevant factors affecting the particular case, including the historical practice of the public body with respect to the release of similar types of records; whether the disclosure of the information will increase public confidence in the operation of the public body, and whether there is a sympathetic or compelling need to release the record.

(Order #5)

  • When exercising his discretion, the head must rely on factors related to the particular discretionary exemption considered. Where the head was found to have not exercised the discretion properly, he/she was ordered to reconsider the exercise of the discretion and to provide written reasons.

TABLE OF AUTHORITIES

Canada

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R.

Canadian Council of Christian Churches v Canada (Minister of Finance), Federal Court Trial Division, May 19, 1999 (Court File T-2144-97)

Canadian Jewish Congress v. Canada (Minister of Employment & Immigration), [1996] 1 F.C. 268 (T.D.)

Canada (Information Commissioner) v. Canada (The Prime Minister), [1993] 1 F.C. 427 (T.D.)

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R.

Information Commissioner of Canada v. Chairman of the C.R.T.C., [1986] 3 F.C. 413 (T.D.).

Information Commissioner v. Canada (Minister of Public Works and Government Services), [1997] 1 F.C.

Rubin v. Canada Mortgage and Housing Corporation, (1987), 8 F.T.R. 230, 36 D.R.C. (4th) 22 (T.D.).

Stevens v. Canada (Prime Minister), [1998] 4 F.C.

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.)

Ruby v. Canada (Solicitor General, RCMP), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.)

Ontario

Orders # 99, 118, 172.

Quebec

Boudrias, Fréchette, Gélinas et associés c. Régie de l'électricité et du gaz, (1984-86) 1 C.A.I. 331.

Cie d'assurances du Québec c. Ville de Chicoutimi, [1987] C.A.I. 84.

Cinq-Mars c. Commission administrative des régimes de retraite et d'assurances, [1986] C.A.I. 187.

Cooperative de commerce des Milles Îles c. Société des alcools du Québec, [1987] C.A.I. 454.

Couto et al. c. Ville de Longueuil, [1987] C.A.I. 24, 31.

Dancause c. Ministere des transports du Québec, [1986] C.A.I. 85.

Deslauriers c. Sous-ministre de la Santé et des Services sociaux du Québec, [1991] C.A.I. 311.

Dufour c. Centre hospitalier Robert-Giffard, [1987] C.A.I. 574.

Dufour c. Commission scolaire Nouvelle Beauce, (1984-86) 1 C.A.I. 25.

Giroux c. Commission des écoles catholiques de Verdun, [1987] C.A.I. 394.

Houde c. Corp. mun. de la paroisse de Ste-Anne de la Pointe-aux-Peres, [1987] C.A.I. 214.

Huard c. Régie de l'assurance automobile du Québec, [1989] C.A.I. 43, 47.

La Voix de l'Est (1982) Inc. c. Ville de Granby, (1984-86) 1 C.A.I. 54.

Lebel c. Commission scolaire de Manicouagan, [1989] C.A.I. 358, 361.

Leblanc c. Centre hospitalier de Chandler, [1987] C.A.I. 181.

Morel c. Office du crédit agricole du Québec, (1984-86) 1 C.A.I. 67.

Ouellet c. Fonds pour la formation des chercheurs et l'aide a la recherche, [1986] C.A.I. 38.

Pépin c. Commission administrative des régimes de retraite et d'assurances, (C.A.R.R.A.), (1984-86) 1 C.A.I. 43.

Rainville c. Commission administrative des régimes de retraite et d'assurances, (C.A.R.R.A.), (1984-86) 1 C.A.I. 437.

Robitaille c. Foyer Notre-Dame-de Lourdes, [1986] C.A.I. 152.

Rousseau-Martin c. Régie des rentes du Québec, [1987] C.A.I. 331.

S... c. Ministere du Revenu du Québec, (1984-86) 1 C.A.I. 35.

Talbot c. Office du crédit agricole du Québec, (1984-86) 1 C.A.I. 104.

Wilson c. Commission scolaire régionale protestante South Shore, (1984-86) 1 C.A.I. 594

Investigating discretionary exemptions

INVESTIGATING GENERAL DISCRETIONARY EXEMPTIONS

Statement of test to be met for discretionary exemption

This Grid provides general lines of questioning that may assist in the investigation of any discretionary exemption. Please refer to the grids for each exemption for lines of questioning on the factors relevant to the exercise of discretion under each particular exemption. Note that in the investigation of any discretionary exemption or exemption with an over-ride, it is first necessary to determine whether the information falls within the exemption itself.

Relevant Questions Departmental Response Assessment

Has the institution considered the issue of whether to disclose or refuse to disclose information subject to a discretionary exemption.

Was the purpose of the Act taken into account, i.e. that of promoting disclosure of government records.

Are the reasons for refusing to disclose consistent with the purpose of the exemption.

Are the reasons for refusing to disclose consistent with the purpose of the exemption.

Did the institution head consider factors which are relevant and consistent with the provisions of the exemption.

Is the outcome reasonable in all of the circumstances.

Has the institution considered whether to disclose or refuse disclosure

If they say it was because the exemption applied, ask whether the institution considered whether the information could be disclosed using the discretion to disclose conferred by the exemption.

  • If not, point out that they are required to consider the issue of whether the information should be disclosed or withheld, notwithstanding that it falls within the exemption.

Have some relevant considerations ready to assist discussion.

Was the purpose of the Act taken into account

Did the institution consider disclosing the information at all?

Assess whether there is public interest in the information, i.e. public debate.

Would disclosure assist or advance public discussion of the issues described in the information.

Would disclosure shed light on an issue of public interest?

Does the information concern issues/matters affecting a large number of people,

  • if so, there is an interest favouring disclosure.

Would disclosure shed light on government decision-making?

Would disclosure assist individuals or groups to participate in government decision-making?

Would disclosure benefit a group or individual?

  • Assist a group or individual to obtain a benefit from government.
  • Assist a group or individual in relations with government.

Would disclosure inform a group or individual about an issue of historical interest?

Would disclosure inform a group or individual about policy considerations or issues impacting on policy or government decisions?

Are there compassionate or humanitarian reasons favouring disclosure.

Have similar records been released in the past.

Is the information or related information publicly available

Are the reasons to refuse disclosure consistent with the purpose of the exemption

What harm or prejudice would flow from disclosure of the information in question.

How significant a degree of harm is expected?

Is the harm described consistent with the language of the exemption?

  • If not, the institution may be considering irrelevant matters.

Does the harm described relate to the reasons for confidentiality which the exemption addresses.

Is the harm expected by the institution reasonable in nature given:

  • the age of the record;
  • the use to which the record is likely to be put, if disclosed.

Point out that refusing disclosure of information which is relatively innocuous or not harmful if disclosed implies the institution is hiding information which is harmful to disclose.

Did the institution consider relevant factors

Did the institution exercise the discretion itself?

Ensure that institution does not base its decision on no reason being brought forward as to why there should be disclosure, institution must itself assess the alternatives.

Did the institution identify interests consistent with the exemption in exercising discretion to refuse disclosure?

Point out that if the reasons for refusing disclosure are not connected to the provisions in the exemption, the reasons are based on irrelevant considerations.

Examples of irrelevant factors:

  • Release would be embarrassing to the institution or government (for reasons unrelated to the exemption).
  • Release would set a precedent and require other documents to be released.
  • Release would require a review of a large number of documents, or would require severance.

Is the decision to refuse disclosure reasonable in all the circumstance

Assess the public interest in disclosure (see questions under Purpose of Act, above).

Weigh against the harm or reasons identified by institution for refusing disclosure.

  • Assess relevance in relation to the exemption.

Does one outweigh the other?

  • If the public interest in disclosure outweighs the reasons for refusing disclosure:
    • Assess whether the institution has adequately considered the reasons favouring disclosure.
    • Ask the institution to reconsider based on the reasons favouring disclosure.
   

Endnotes

1. See Ruby v. Canada (Solicitor General, RCMP), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.).

2. In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, Cory J. in the Supreme Court of Canada majority decision stated, in relation to the discretionary public interest override in subsection 19(2):

… I agree with LaForest J.'s conclusion that a Minister's discretionary decision under s. 8(2)(m)(i) [of the Privacy Act] is not to be reviewed on a de novo standard of review. Perhaps it will suffice to observe that the Minister is not obliged to consider whether it is in the public interest to disclose personal information. However, in the face of a demand for disclosure, he is required to exercise that discretion by at least considering the matter. If he refuses or neglects to do so, the Minister is declining jurisdiction which is granted to him alone. [Emphasis added]

In Canadian Jewish Congress v. Canada (Minister of Employment & Immigration), [1996] 1 F.C. 268 (T.D.) the Federal Court Trial Division set out the two-step decision necessary for discretionary exemption as follows (this test was adopted by LaForest J. in his decision in the Supreme Court of Canada in Dagg):

When reviewing decisions made under permissive provision the Court must decide not only whether the information falls within that described in the relevant provision, but also, if it does, whether the head of the government institution lawfully exercised the discretion not to disclose it. [Emphasis added]

In Information Commissioner v. Canada (Minister of Public Works and Government Services), [1997] 1 F.C. 164, the Federal Court Trial Division ordered an institution head to disclose personal information based, in part, on inadequate consideration by the institution head of whether to invoke the public interest override in subsection 19(2) of the Access to Information Act. In that case the Minister relied on legal advice stating that, "in cases involving personal information … the benefit of the doubt [should be given to] protecting the information." The Court found that by simply relying on this advice the Minister had failed to turn his mind to the weighing of competing interests which is required to make a decision to invoke or not to invoke the override.

See also Stevens v. Canada (Prime Minister)[1998] 4 F.C. 89, where the Federal Court of Appeal confirmed in relation to section 23 that once it is determined that requested information falls within the exemption as being subject to solicitor-client privilege, this does not end the matter, as section 23 is discretionary and the institution head is also obliged to consider whether to disclose the information in any event.

3. See Ruby v. Canada (Solicitor General, RCMP), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.), supra, paragraph 30.

4. Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403

5. Dagg v. Canada. Ibid. See also cases under endnote 1.

6. In Ruby v. Canada (Solicitor General, RCMP), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.), supra, the Court stated that a request for information subject to the Privacy Act exemption [section 13 access to Information Act] "includes a request to the head of a government institution to make reasonable efforts to seek the consent of the third party which provided the information." (Emphasis added). The Court also considered the duty of the institution head to consider whether the public interest override in sub-paragraph 8(2)(m)(i) applied and concluded that, because it was unclear whether the government institution (in this case CSIS) had conducted any kind of discretionary balancing of public interest and privacy interests, the matter should be remitted to the Trial Judge to determine whether the exemption from disclosure had been properly applied:

Having said all this, however, we confess that we are unable to ascertain from the decision of the reviewing judge whether in fact CSIS conducted any kind of discretionary balancing of public interest and privacy. In other words, it is unclear whether CSIS took any consideration of subparagraph 8(2)(m)(i) when it refused to disclose information relating to third parties and whether, therefore, it properly applied the exemption it claimed pursuant to section 26 of the [Privacy] Act. Nor are we able to determine whether the reviewing judge was satisfied that the exemption had been considered by CSIS, or that he considered it himself.

In the circumstances, there should be a new review of the personal information requested in banks 010 and 015 for the purpose of determining whether the exemption in section 26 has been properly applied by CSIS. (At paragraph 124- 125).

7. Dagg v. Canada, supra,per LaForest, J.

8. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 an immigration case, the Supreme Court of Canada set out new criteria for reviewing the discretionary decisions of public officials. The Court replaced the old analysis (used in Dagg v. Canada, supra) which required good faith, fair procedure and considerations relevant to the purpose of the legislation, with a new approach based on assessing what the appropriate degree of oversight by a Court should be, given factors like the degree of expertise in the decision-maker, whether the statute contains a provision which protects decisions from being overridden or reviewed by Courts and the kind of decision involved (i.e. policy decisions or decisions involving individual rights). The Court in Baker concluded that the exercise of discretion in that case should be reviewed based on whether it was "reasonable", as opposed to "incorrect" or "patently unreasonable". There are good reasons to support a similar approach to the review of discretionary decisions under the Access to Information Act and to conclude that the criteria for review of such decisions will become whether the institution head's decision to exercise discretion not to disclose a record was "reasonable".

9. Ruby v. Canada (Solicitor General, RCMP), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.), supra. The Court based its conclusion that the institution and not the individual bears the burden of proof in relation to the exercise of discretion on the following factors:

Where accessibility to personal information is the rule and confidentiality the exception, where an applicant has no knowledge of the personal information withheld, no access to the record before the court and no adequate means of verifying how the discretion to refuse disclosure was exercised by the authorities, and where section 47 of the Act clearly puts on the head of a government institution the burden of establishing that it was authorized to refuse to disclose the personal information requested and, therefore, that it properly exercised its discretion in respect of a specific exemption it invoked - an applicant cannot be made to assume an evidential burden of proof.

10. See Canadian Council of Christian Churches v Canada (Minister of Finance), Federal Court Trial Division, May 19, 1999 (Court File T-2144-97), paras. 13-14.

11. Canada (Information Commissioner) v. Canada (The Prime Minister), [1993] 1 F.C. 427 (T.D.):

"The Act contains two types of exemptions, mandatory (sections 13, 19, 20, 24) and discretionary (sections 14, 15, 16, 17, 18, 21, 22, 23). In the case of mandatory exemptions the only decision to be made is whether the record come within the description that the Act requires be exempted from disclosure. In the case of discretionary exemptions such as that under section 14, two decisions are necessary: first, does the record come within the description that is contemplated by the statutory exemption invoked in a particular case; and second, if it does, should the record nevertheless be disclosed."

See Dagg v. Canada, supra, at endnote 1, in relation to the overrides in subsection 19(2).

12. X v. Canada (Minister of National Defence), [1992] 1 F.C. 77, 46 F.T.R. 206 (T.D.).

13. Ruby v. Canada (Solicitor General RCMP), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.).

14. Ruby v. Canada (Solicitor General RCMP), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.).

15. Rubin v. Canada (CMHC), [1989] 1 F.C. 265; 52 D.L.R. (4th) 671; 19 F.T.R. 160; 86 N.R. 186 (C.A.); See also Bland v. Canada (National Capital Commission), [1991] 3 F.C. 325; 41 F.T.R. 202; 4 Admin L.R. (2d) 171; 36 C.P.R. (3d) 289 (T.D.).

16. Ibid. Dagg v. Canada, supra.

17. Canada Packers Ltd. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47; 53 D.L.R. (4th) 246; 32 Admin. L.R. 178; 26 C.P.R. (3d) 407; 87 NR. 8 (C.A.):

"A decision under subsection 20 (1) is not, however, the end of the matter. If a report were sufficiently negative as to give rise to a reasonable probability of material financial loss to a third party, a Minister of the Crown would then have to take his/her responsibility under subsection 20 (6) by determining whether 'the public interest as it relates to public health, public safety or protection of the environment ... clearly outweighs in importance any financial loss' to the third party. This is not, as I have held, a discretion which can be exercised in the first instance by a Court. No such further questions, however, arise at this stage of these cases..."

See also Hunter v. Canada (Consumer & Corporate Affairs), (1990) 29 C.P.R. (3d) 321; 35 F.T.R. 75 (F.C.T.D.).

18. Canadian Council of Christian Churches v. Canada (Minister of Finance), supra. Kelly v. Canada (Solicitor General), (April 1, 1992), T-948-91 (F.C.). [PRIVACY DECISION]. Dagg v. Canada, supra. But see the commentary in footnote 4 regarding Baker v. Minister of Immigration, [1999] S.C.R. and assessment of the exercise of discretion on a standard of reasonableness.

19. In this case, the department claimed section 19 of the Ontario Act (the equivalent of section 23 of our Act). In exercising his discretion, the head took into consideration the following factors:

  • The appellant had initiated a claim against the government in respect of the incident which is discussed in the records in issue;
  • based on the appellant's prior conduct, there were reasons to believe that release of the severed material might result in harassment of the individuals who provided the information contained in the records;
  • the portions of the records directly related to the lawsuits where of a particularly sensitive nature.

Considering these factors, Commissioner Linden found the exercise of discretion proper.