Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 12 • The nature of the record and the extent to which the record is significant or sensitive to the local authority. • Whether the disclosure of the information will increase public confidence in the operation of the local authority. • 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 local authority 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 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 local authority exercises its statutory discretion in a manner that results in information being withheld from disclosure, that discretion is properly reviewed by the 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. 62-63. 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]. 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.
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