Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 13 The Supreme Court also considered the following factors to be relevant to the review of discretion: • The decision was made in bad faith. • The decision was made for an improper purpose. • The decision took into account irrelevant considerations. • The decision failed to take into account relevant considerations.25 When a government institution exercises its statutory discretion in a manner that results in information being withheld from disclosure, that discretion is properly reviewed by the Commissioner.26 During a review of a discretionary exemption, the Commissioner may recommend that the head of the government institution reconsider its exercise of discretion if the Commissioner feels one of these factors played a part in the original decision to withhold records. However, the Commissioner will not substitute their own discretion for that of the head.27 IPC Findings In Review Report 305-2016, the Commissioner recommended the head of Executive Council reconsider the use of discretion in withholding an email under subsection 17(1)(a) of FOIP. In making this recommendation, the Commissioner noted that the advice in the email was not about a proposed policy or direction of the government organization but rather the best way to communicate a particular message to public servants. It did not appear that Executive Council took into account the nature of the record and the extent to which the record was significant or sensitive to Executive Council. In Review Report 086-2018, the Commissioner recommended the Ministry of Health reconsider its exercise of discretion in withholding a record that would reveal the content of draft or subordinate legislation (subsection 17(1)(e) of FOIP). In making this recommendation, the Commissioner noted that the record was 14 years old, and the specific piece of legislation had been amended five times since the record was created. 25 Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 at [71], referenced in SK OIPC Review Report 305-2016 at [37]. The Offices of the Information and Privacy Commissioners of British Columbia, Alberta and Ontario have also relied on these four factors. 26 Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 at [68] to [74]. Referenced in the Office of the British Columbia Information and Privacy Commissioner (BC IPC) Decision F10-08 at [41]. 27 SK OIPC Review Report 305-2016 at [38].
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