Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 11 • Danger to health or safety (section 20); and • Solicitor-client privilege (section 21). 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 LA FOIP. It requires the head, or staff member delegated to exercise the discretion of the head, to weigh all factors in determining whether 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 Some factors that should be considered when exercising discretion include: • The general purposes of the Act (i.e. local authorities 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 local authority with respect to the release of similar types of records. 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].
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