Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 9 nature of the issue and “inherent probabilities or improbabilities or the seriousness of the allegations or consequences”… Mandatory & Discretionary Exemptions The basis on which the exemptions are applied by the government institution also varies. In some cases, it is mandatory that the exemption be applied. In other cases, the head of the government institution has discretion as to whether to apply the exemption.14 The Legislation Act, SS 2019, c L-10.2 provides the following clarification on the terms “shall”, “must” and “may”: 2-30(1) In the English version of an enactment: (a) “shall” shall be interpreted as imperative; (b) “must” shall be interpreted as imperative; and (c) “may” shall be interpreted as permissive and empowering. Mandatory Exemptions A mandatory exemption is one where the government institution has no, or a more limited, discretion regarding whether or not to apply the exemption. That is, if the information is covered by the exemption and the conditions for the exercise of discretion do not exist, then it must not be disclosed. Mandatory exemptions can be contrasted with discretionary exemptions, where the head of the government institution must turn their mind actively to the question of whether or not the information should be protected or released.15 Mandatory exemptions begin with the phrase “A head shall refuse…” Shall is to be interpreted as imperative.16 The four mandatory exemptions in FOIP are as follows: • Records from other governments (section 13); 14 Government of Canada, Department of Justice, Resource, Strengthening the Access to Information Act, https://www.justice.gc.ca/eng/rp-pr/csj-sjc/atip-aiprp/atia-lai/p5.html, accessed June 7, 2019. 15 Government of Canada, Department of Justice, Resource, Strengthening the Access to Information Act, https://www.justice.gc.ca/eng/rp-pr/csj-sjc/atip-aiprp/atia-lai/p5.html, accessed June 7, 2019. 16 The Legislation Act, S.S. 2019, Chapter L-10.2 at ss. 2-30.
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