Guide to FOIP-Chapter 4

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 10 • Cabinet documents (section 16); • Third party business information (section 19); and • Personal information (subsection 29(1)). The government institution must weigh all the criteria, factors and tests relating to the mandatory exemption before deciding whether the exemption applies. Information that falls within a mandatory exemption can be disclosed in some circumstances. For instance, where there is consent to release (e.g., 13(1) of FOIP), authority to release without consent (e.g., subsection 29(2) of FOIP), enough time has passed (16(2)(a) of FOIP) or there is a public interest override. For more on public interest overrides, see Public Interest Override later in this Chapter. Discretionary Exemptions Discretionary exemptions offer discretion for the government institution. In other words, disclosure can still occur even where a discretionary exemption is found to apply. Discretionary exemptions begin with the phrase “A head may refuse…” May is to be interpreted as permissive and empowering.17 Fish J. provided guidance in the Supreme Court of Canada decision Blank v. Canada (Minister of Justice) (2006), when dealing with a discretionary exemption in the federal Access to Information Act. In the majority judgment for the Court, he observed that: The language of [the solicitor-client exemption] is, moreover permissive. It provides that the Minister may invoke the privilege. This permissive language promotes disclosure by encouraging the Minister to refrain from invoking the privilege unless it is thought necessary to do so in the public interest. And it thus supports an interpretation that favours more government disclosure, not less.18 17 The Legislation Act, S.S. 2019, Chapter L-10.2 at ss. 2-30. 18 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [52]. Cited in SK OIPC Review Report LA-2007-001 at [58].