Discretion (General) : Questions

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.
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