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. 11 All of the remaining exemptions in Part III of FOIP are discretionary exemptions. This includes: • Information injurious to intergovernmental relations or national defence (section 14); • Law enforcement and investigations (section 15); • Advice from officials (section 17); • Economic and other interests (section 18); • Testing procedures, tests, and audits (section 20); • Danger to health or safety (section 21); and • Solicitor-client privilege (section 22). A decision to apply a discretionary exemption requires two steps: 1. The head must determine whether the exemption applies; and 2. If it does, the head must go on to ask whether, having regard to all relevant interests, including public interest in disclosure, disclosure should be made.19 To determine the first step, the tests provided in this guide can be a starting point. For the second step, the following guidance on the exercise of discretion can assist. Exercise of Discretion The exercise of discretion is fundamental to applying FOIP. It requires the head, or staff member delegated to exercise the discretion of the head, to weigh all factors in determining whether or not information can be released despite a discretionary exemption being found to apply. Exercise of discretionary power means making a decision that cannot be determined to be right or wrong in an objective sense.20 A discretion conferred by statute must be exercised consistently with the purposes underlying its grant. It follows that to properly exercise this discretion, the head must weigh the considerations for and against disclosure, including the public interest in disclosure.21 19 Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 at [66]. 20 SK OIPC Resource, Dictionary: Terms & Phrases in FOIP, LA FOIP & HIPA at p. 15. 21 Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 at [46].