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. 12 Some factors that should be considered when exercising discretion include: • The general purposes of the Act (i.e., government institutions should make information available to the public, and individuals should have access to personal information about themselves). • The wording of the discretionary exemption and the interests which the exemption attempts to protect or balance. • Whether the applicant’s request may be satisfied by severing the record and providing the applicant with as much information as is reasonably practicable. • The historical practice of the government institution with respect to the release of similar types of records. • The nature of the record and the extent to which the record is significant or sensitive to the government institution. • Whether the disclosure of the information will increase public confidence in the operation of the government institution. • The age of the record. • Whether there is a definite and compelling need to release the record. • Whether the Commissioner’s recommendations have ruled that similar types of records or information should be released.22 Taking a “blanket approach” to applying exemptions may demonstrate that the government institution has not exercised its discretion or has exercised it improperly. Although it may be proper for a decision maker to adopt a policy under which decisions are made, it is not proper to apply this policy inflexibly to all cases. In order to preserve the discretionary aspect of a decision, the head must take into consideration factors personal to the applicant and must ensure that the decision conforms to the policies, objects, and provisions of the Act.23 The Supreme Court of Canada ruling Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, (2010) confirmed the authority of the Information and Privacy Commissioner of Ontario to quash a decision not to disclose information pursuant to a discretionary exemption and to return the matter for reconsideration to the head of the public body.24 22 SK OIPC Review Report 305-2016 at [35], Office of the Privacy Commissioner of Canada Resource, Access to Information and Privacy, Process and Compliance Manual at pp. 62 and 63. 23 SK OIPC Investigation Report LA-2010-001 at [36], SK OIPC Review Reports F-2006-001 at [69], F2014-001 at [66]. 24 Referenced in SK OIPC Review Report 305-2016 at [36].