Discretion not exercised in reasonable manner

FREEDOM OF INFORMATION

Discretion not exercised in reasonable manner

This was application pursuant to s. 41 of Access to Information Act (Can.), to review decision of Library and Archives Canada (LAC). Applicant was journalist and he sought information on Canadian politician. LAC refused to disclose portions of R.C.M.P.’s dossier on politician based on s. 15 of Act, national security exemption. Applicant made formal complaint to Information Commissioner but commissioner found that applicant’s complaint was not justified. Application granted. There was two-step approach to analysis and review of claimed exemptions under s. 15 of Act. Court reviewing refusals of disclosure under discretionary exemptions were to review: whether documents fell within exemption claimed; and whether discretion was exercised properly. Reasonable expectation of probable harm was to be shown. Injury-based determination that must be undertaken by court must balance aims of Act and objectives, namely, that exemptions were to be interpreted restrictively. Information that was withheld from applicant was done in manner that ran counter to principles of Act and LAC’s mandate. LAC failed to exercise residual discretion once documents had been seen to be covered by s. 15 exemption. On balance of probabilities, court was not satisfied that discretion was exercised and if discretion was exercised it was not exercised in reasonable manner. Matter was set to LAC for re-determination.

Bronskill v. Canada (Minister of Canadian Heritage) (Aug. 11, 2011, F.C., Noel J., File No. T-1680-09) 205 A.C.W.S. (3d) 612 (108 pp.).