The exercise of discretion is fundamental to achieving the intentions of the Act. The guiding principle of the Act is that the public has a right of access to information in the custody or control of the government unless there are relevant reasons against releasing it. In recognition of this principle, the discretionary exceptions require the head of a public body to consider all relevant factors. A public body should release the information in keeping with the spirit and intent of the Act unless a relevant factor (i.e., harm) mitigates against release.
The discretionary exceptions beginning "The head of a public body may refuse to disclose information . . ." allow public bodies to withhold information after consideration of all relevant factors. Some of the discretionary exceptions are harm based (i.e., sections 15, 16, 17, 18, and 19) while others are not (i.e., sections 13, 14 and 20). Although sections 13, 14 and 20 are not required to prove harm to support withholding the information, the possibility of harm may be used as a factor in exercising discretion.
However, these exceptions also recognize that, on occasion, public bodies may wish to release the information even though it technically qualifies for exception. This could happen in cases where the benefits of disclosure outweigh the harm or where a combination of factors makes the harm negligible.
The exercise of discretion allows the head of a public body to set an example, to demonstrate that the public body is operating in the spirit of the legislation. It is not simply a formality where the head considers the issues before routinely saying no. The head must show that relevant factors were considered and, if the decision is to withhold the information, that there were convincing reasons to support the decision.
The discretion to disclose information can only be exercised by the head of the public body. The head of a provincial public body may designate a person in writing to exercise discretion on behalf of the head. Local public bodies may, by bylaw or other legal instrument, such as a resolution, authorize a person or group of persons other than the head to exercise discretion. In exercising discretion, the head of the public body may want to consult with other public bodies that may have an interest in the requested records.
The Commissioner cannot override a head's decision where the head has properly exercised discretion. The Commissioner can, however, insist that discretion be exercised where there is no evidence that the responsibility was taken seriously and order the head to reconsider a discretionary decision on excepting information.
Discretion must be exercised under the following exceptions in the Act:
- section 12(3) (Local public body confidences)
- section 13 (Policy advice, recommendations or draft regulations)
- section 14 (Legal advice)
- section 15 (Disclosure harmful to law enforcement)
- section 16 (Disclosure harmful to intergovernmental relations or negotiations)
- section 17 (Disclosure harmful to the financial or economic interests of a public body)
- section 18 (Disclosure harmful to the conservation of heritage sites, etc.)
- section 19 (Disclosure harmful to individual or public safety)
- section 20 (Information that will be published or released within 60 days)