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Exercise of Discretion

Last updated on April 27, 2016

OVERVIEW

Most of the exceptions in the Act require the head of a public body to use discretion in deciding whether or not to withhold requested information.

This section discusses the principles behind the requirement to use discretion and the factors to consider when doing so. The individual sections on the discretionary exceptions also discuss these points.

POLICY

  1. The underlying principle in exercising discretion is that the public has a right of access to government information, unless the head of the public body determines that relevant factors warrant withholding the information.
  2. Some discretionary exceptions are harm-based and require the head of a public body to decide if harm is likely to result from disclosure of the information.
  3. The head must show that relevant factors were considered and, if the decision is to withhold the information, that there were convincing reasons to support the decision.
  4. The discretion to disclose or withhold information can only be exercised by the head of the public body.
  5. The head of a public body may exercise discretion only where the Act provides for it. The head has no discretion to withhold information unless it falls within a discretionary exception in the Act.  
  6. A public body must not replace the exercise of discretion with a blanket policy that information will not be released, simply because it can be withheld under one of the discretionary exceptions. Public bodies may develop guidelines on exercising discretion but may not treat them as binding rules.   

PROCEDURE

  1. Once the public body has determined that all or part of the requested record falls within one of the discretionary exceptions, the head must then decide whether to release the information, despite the existence of grounds for the exception. The head’s decision is based on the recommendations of the Director/Manager of Information and Privacy (DMIP) and all relevant circumstances of the case.
  2. The head exercises discretion to disclose or withhold information for each request, with specific reference to the information requested and the particular circumstances of the case.
  3. If it has been necessary to consult with a third party or another public body, the public body takes those representations into account when making its determination.
  4. If a public body exercises discretion in favour of release of a record to which section 14 applies, it must first consult with its designated legal counsel before disclosing the record.
  5. If the head decides to exercise discretion to disclose non-law enforcement information to which section 16 applies, consent of Executive Council (Cabinet) must be obtained prior to disclosure. In this instance, the DMIP for the public body contacts the DMIP in the Office of the Premier. For law enforcement information, contact the DMIP in the Ministry of Attorney General to obtain the consent of the Attorney General.
  6.   The use of discretion promotes the policies and objectives of the Act. Public bodies consider all factors relevant to achieving the objectives of the Act in the exercise of discretion. These include:
  • the general purposes of the legislation: public bodies should make information available to the public; individuals should have access to personal information about themselves;
  • the wording of the discretionary exception and the interests which the exception attempts to balance;
  • whether the applicant's request could be satisfied by severing the record and by providing the applicant with as much information as is reasonably practicable;
  • the historical practice of the public body with respect to the release of similar types of records;
  • the nature of the record and the extent to which the record is significant and/or sensitive to the public body;
  • whether the disclosure of the information will increase public confidence in the operation of the public body;
  • the age of the record;
  • whether there is a sympathetic or compelling need to release the record; and,
  • whether previous orders of the Commissioner or an adjudicator have ruled that similar types of records or information should or should not be subject to disclosure.                           

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 exception, bearing in mind that the goal is to release as much information as possible. The process of severing plays an integral part in the proper exercise of discretion in the spirit of the legislation.

INTERPRETATION

The exercise of discretion is fundamental to achieving the intentions of the Act. The guiding principle of the Act is that the public has a right of access to information in the custody or control of the government unless there are relevant reasons against releasing it. In recognition of this principle, the discretionary exceptions require the head of a public body to consider all relevant factors. A public body should release the information in keeping with the spirit and intent of the Act unless a relevant factor (i.e., harm) mitigates against release.

The discretionary exceptions beginning "The head of a public body may refuse to disclose information . . ." allow public bodies to withhold information after consideration of all relevant factors. Some of the discretionary exceptions are harm based (i.e., sections 15, 16, 17, 18, and 19) while others are not (i.e., sections 13, 14 and 20). Although sections 13, 14 and 20 are not required to prove harm to support withholding the information, the possibility of harm may be used as a factor in exercising discretion.

However, these exceptions also recognize that, on occasion, public bodies may wish to release the information even though it technically qualifies for exception. This could happen in cases where the benefits of disclosure outweigh the harm or where a combination of factors makes the harm negligible.

The exercise of discretion allows the head of a public body to set an example, to demonstrate that the public body 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 relevant factors were considered and, if the decision is to withhold the information, that there were convincing reasons to support the decision.

The discretion to disclose information can only be exercised by the head of the public body. The head of a provincial public body may designate a person in writing to exercise discretion on behalf of the head. Local public bodies may, by bylaw or other legal instrument, such as a resolution, authorize a person or group of persons other than the head to exercise discretion. In exercising discretion, the head of the public body may want to consult with other public bodies that may have an interest in the requested records.

The Commissioner cannot override a head's decision where the head has properly exercised discretion. The Commissioner can, however, insist that discretion be exercised where there is no evidence that the responsibility was taken seriously and order the head to reconsider a discretionary decision on excepting information.

Discretionary exceptions

  • section 12(3) (Local public body confidences)
  • section 13 (Policy advice, recommendations or draft regulations)
  • section 14 (Legal advice)
  • section 15 (Disclosure harmful to law enforcement)
  • section 16 (Disclosure harmful to intergovernmental relations or negotiations)
  • section 17 (Disclosure harmful to the financial or economic interests of a public body)
  • section 18 (Disclosure harmful to the conservation of heritage sites, etc.)
  • section 19 (Disclosure harmful to individual or public safety)
  • section 20 (Information that will be published or released within 60 days)

Example

A memorandum contains a background discussion of the possibility of establishing an environmental reserve. It also contains a list of options and a recommended course of action developed for the Ministry of Environment, Lands and Parks.

The recommendation falls within subsection 13(1) and the head must exercise discretion to decide whether or not to release the recommendation. Assume the environmental reserve issue has received wide media coverage and there has been some confusion as to what the decision process has involved. Given that a decision has been made regarding the environmental reserve and this decision has been announced, the sensitivity of the information has diminished. Release of the information will likely increase public confidence in the operation of the public body as well. The Information and Privacy Unit, in consultation with program specialists, recommends that the head exercise discretion in favour of releasing the information.