#3   – “Undiscretions”

Most exemptions that permit Government Institutions to hide information from requesters are discretionary rather than mandatory. Discretionary exemptions can be spotted by the word “may” in the section that empowers the exemption. Mandatory exemptions contain the word “shall”. In the latter case, if the information at requested, or some portion of it, meets the criteria set out in the Section of the Act it must be protected against disclosure. The matter does not stop there, however,in the case of discretionary exemptions. Here, even if the information appears protected by the Section, in the words of the Department of Justice []

“the head of the government institution must turn his mind actively to the question of whether or not the sensitive information should be protected, or should be released, and then make a decision.”

What this means is that the purpose of the exemption – for example “safety” ,”security”, “the conduct of international relations” – may be less important than the requester’s need to receive the information. For example, where the requester seeks information that has an important bearing on his liberty (e.g. assessment of his risk to society) and the information has limited impact on safety and could be vetted to prevent safety problems, it is reasonable for the Government Institution to release the information.

Trouble is, the review often goes no further than the first step. Once the information is deemed to be covered by the Section, that’s it! No further action! No discretion! No consideration!

My advice is to make the Government Institution aware of the discretionary aspect at the outset – or rather to make it aware that you are aware.

In your request, say something like, “If you decide that any information falls under the wording of a discretionary exemption, I expect that you will exercise your discretion to decide if the information, or a portion of it, should be released in any case. I also expect that you will explain your rationale for the decision you make based upon that discretion”.



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