Exercising discretion under the Access to Information Act

What is a discretionary power?
Who can exercise a discretionary power?
How should a discretionary power be exercised?
Exemptions involving discretion
Elements needed to establish exercise of discretion was legally valid and/or reasonable
References

What is a discretionary power?

The Access to Information Act grants discretionary powers to heads of institutions. A discretionary power is a power to decide to do or not do something. This type of power stands in contrast to mandatory powers (those institutions must exercise).

The Act uses the word “may” when listing discretionary powers (e.g. subsection 15(1): “The head of a government institution may refuse to disclose any record requested under this Part that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs ….”).

In contrast, the Act uses the word “shall” when setting out mandatory obligations (e.g. subsection 19(1): “Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Part that contains personal information”).

A discretionary power gives the decision-maker a choice, whereas a mandatory power requires someone to do something. There is generally no right or wrong choice when making a discretionary decision. Rather, the decision-maker must first understand that they are required to exercise their discretion and then make a reasonable decision.

Who can exercise a discretionary power?

Only a person empowered under the Act to exercise a discretionary power may do so. This means that when a discretionary power is given to the head of an institution, that person must exercise the power themselves, unless they have expressly delegated that power to someone else, as authorized by the Act.

Section 95 allows the heads of institutions to delegate any of their powers, duties or functions under the Act to one or more officers or employees of their institution. This allows for properly delegated officers or employees to exercise the discretionary powers delegated to them. This includes withholding information under the various exemptions in the Act.

References to exercises of discretion by institutions in this guide are references to exercises of discretion by the head of the institution or a properly delegated officer or employee.

How should a discretionary power be exercised?

The person to whom a discretionary power is granted or delegated can choose how to exercise it. In most cases, this person is free to exercise the power or not; they are not compelled to act in a particular way. For example, under the Act, the head of an institution may decide whether or not to disclose personal information that is publicly available under paragraph 19(2)(b).

There are, however, some constraints to the exercise of a discretionary power. The individual must exercise their discretion in good faith, for a proper purpose, impartially and within the scope of the powers granted by the law.

The individual must base their exercise of discretion on all relevant factors (and not on irrelevant factors; see “All relevant factors must be considered” for a detailed discussion of factors). Within this framework, however, decision-makers have a degree of leeway in what decisions they may make and the reasoning behind those decisions.

Exemptions involving discretion

Many of the exemptions under the Act require the head of the institution to use discretion to decide whether to disclose information or not. There are also mandatory exemptions that feature discretionary exceptions permitting disclosure.

Discretionary exemptions

These are non-mandatory exceptions to the right of access. When information meets the requirements of the exemption, the head of the institution or a delegated individual must reasonably exercise their discretion to decide whether or not, and to what extent, to disclose information.

The following are the discretionary exemptions in the Act:

Discretionary exemptions
Provision	Short description
Section 14	Federal-provincial affairs
Subsection 15(1)	International affairs, national security or defence
Paragraph 16(1)(a) Paragraph 16(1)(b) Paragraph 16(1)(c) Paragraph 16(1)(d)	Investigative bodies Investigative techniques or investigation plans Law enforcement or the conduct of investigations Security of penal institutions
Subsection 16(2)	Facilitating the commission of an offence
Section 16.3	Investigations, examinations and reviews under the Canada Elections Act
Section 17	Safety of individuals
Paragraph 18(a) Paragraph 18(b) Paragraph 18(c) Paragraph 18(d)	Government trade secrets or government financial, commercial, scientific or technical information Competitive position of government institutions or negotiations by government institutions Government scientific or technical information obtained from research Government financial interests or Government of Canada’s ability to manage the economy or undue benefit to an individual
Subsection 18.1(1)	Trade secrets or confidential financial, commercial, scientific or technical information of Canada Post, Export Development Canada, the Public Sector Pension Investment Board or VIA Rail
Paragraph 21(1)(a) Paragraph 21(1)(b) Paragraph 21(1)(c) Paragraph 21(1)(d)	Advice or recommendations Accounts of consultations or deliberations Positions or plans developed for negotiations Plans related to personnel management or administration
Section 22	Testing or auditing procedures or techniques
Subsection 22.1(1)	Draft internal audit reports and their working papers
Section 23	Solicitor-client and litigation privilege
Section 23.1	Patents or trademarks
Section 26	Information to be published

Mandatory exemptions with discretionary exceptions permitting disclosure

Under mandatory exemptions, the institution must not disclose the requested records when information meets the requirements of the exemption. However, the following mandatory exemptions contain exceptions that require the institution to decide whether to release the records despite their meeting the requirements of the exemption:

Mandatory exemptions with discretionary exceptions permitting disclosure
Provision	Short description
Subsection 13(1)	Confidential information from government bodies Subsection 13(2) sets out the discretionary powers
Subsection 19(1)	Personal information Subsection 19(2) sets out the discretionary powers
Section 20	Third-party information Subsections 20(5) and (6) set out the discretionary powers

When intending to withhold information under one of these exemptions, institutions must do the following when responding to the access request:

reasonably determine whether the circumstances described in the exception exist, so as to trigger the exercise of discretion
when such circumstances exist, reasonably exercise discretion as to whether or not to disclose the information.

Even if the existence of a circumstance allows the institution to disclose the information, the institution still has discretion to withhold it (see, for example, Fontaine). The institution, however, will generally need to be able to explain what factors it considered when deciding to withhold the information, even though disclosure was permitted.

In the case of a mandatory exemption with a discretionary exception, the institution must reasonably consider whether such circumstances existed at the time it responded to the access request.

What is key is reasonableness (discussed under “Reasonableness of exercise of discretion”); for example, an institution must make reasonable efforts under paragraph 19(2)(a) to seek consent of the individual to whom personal information relates (Fontaine). Otherwise, the institution must demonstrate that seeking the individual’s consent would go beyond reasonable efforts. If, in the circumstances, seeking consent would go beyond what is reasonable, it would not be required.

There might also be situations when, because of the nature of the information, it would be apparent why the institution did not consider it reasonable to make any effort to ascertain whether there would be any circumstance that would permit disclosure of the information (e.g. seeking an individual’s consent to the disclosure of their social insurance number or banking information).

Elements needed to establish exercise of discretion was legally valid and/or reasonable

If the following elements are not met, the exercise of discretion is not legally valid and/or is unreasonable.

Legality of exercise of discretion

Only the head of an institution or a properly delegated officer or employee of an institution may exercise discretion on behalf of the institution. If someone not properly delegated to make the decision exercised the discretion, the exercise of discretion is not legally valid.

Evidence that discretion was exercised

The institution must have understood that it had discretion and then exercised that discretion. If the evidence does not show this, then no exercise of discretion can be said to have taken place.

Reasonableness of exercise of discretion

The exercise of discretion must be reasonable.

An institution’s exercise of discretion will not be unreasonable simply because someone else might have decided differently. This is because a reasonable exercise of discretion frequently can result in more than one possible outcome.

Within the context of the application of exemptions, the exercise of discretion can result in either a decision to withhold or to disclose information. In many instances either outcome could be reasonable.

However, this might not be the case in some circumstances. For example, when the criteria for a discretionary exception to a mandatory exemption are met (e.g. consent under paragraph 19(2)) and there is no discernible factor supporting non-disclosure, the only reasonable outcome may be for the information to be disclosed.

Exercise of discretion must be transparent and intelligible

The institution’s decision must be transparent and intelligible.

If the reasons for an institution’s decision are non-existent, opaque or otherwise indiscernible, and if the evidence and representations do not shed light on the reasons why the decision-maker decided in the way they did, the requirement that the exercise of discretion be transparent and intelligible is not met (Leahy).

All relevant factors must be considered

The reasonableness of an institution’s exercise of discretion requires that the institution consider all relevant factors. These factors will vary depending on the circumstances of the access request.

The institution must not consider irrelevant or improper factors (e.g. the potential embarrassment to an institution) when exercising discretion. The consideration of an irrelevant or improper factor undermines an institution’s claim that its exercise of discretion was reasonable.

Institutions must make a serious intellectual effort with regard to their exercise of discretion. (National Defence; Transport Canada; Bronskill). This means they must consider both factors in favour and against disclosure in a complete and transparent fashion.

Here are non-exhaustive lists of factors that might be relevant to an institution’s exercise of discretion within the context of the application of exemptions under the Act :

Discretionary exemptions

Purpose of the Act
Purpose of the exemption claimed
Public interest in disclosure
Risk of harm from disclosure
Age of the records
Nature of the records

Mandatory exemptions with discretionary exceptions permitting disclosure (when circumstances are met)

Factors listed immediately above
Fact that the circumstances giving rise to the exercise of discretion exist

When investigating a complaint, the OIC must be satisfied, based on the representations and the documents related to the decision-making process, that the institution considered all relevant factors when exercising discretion. Institutions must do more than merely declare that all relevant factors were considered; however, they do not need to provide a detailed analysis of each and every factor and how they were weighed against each other (Prime Minister; National Defence).

In some circumstances, it may be inferred that the institution considered relevant factors even if it did not expressly set them out in its representations. In certain cases, however, the outcome of a decision may depend on a critical factor that—given its importance—the institution ought to have expressly identified and addressed (and which may not be inferable).

Inferences

An inference is a logical deduction based on evidence and reasoning.

If, for example, an institution’s processing file indicates that a delegated decision-maker considered all relevant factors when exercising discretion under one exemption, it might be reasonable to infer that the decision-maker also considered those factors when exercising discretion to withhold the same information under another exemption (see Prime Minister).

When, however, there is no evidence or insufficient evidence of someone with delegated authority having exercised discretion or considered relevant factors, it cannot be inferred that discretion was exercised with regard to all relevant factors (Attaran). In such cases, it may be concluded that the institution did not reasonably exercise its discretion. Inferences should only be drawn from established facts (Toronto Port Authority).

Timing of the exercise of discretion

Discretionary decisions are reviewed as of the time they were made. Only factors that existed at the time of the exercise of discretion are relevant. If new factors arise afterwards, they are not relevant to whether the exercise of discretion was reasonable.

A decision-maker cannot be faulted for not having considered factors that did not exist at the time they exercised their discretion.