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Document
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PO-1743
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File #
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PA-990174-1
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Institution/HIC
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Ministry of the Attorney General
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Summary
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NATURE OF THE APPEAL: The requester is a lawyer representing two children (the appellants) whose parents were killed in a motor vehicle accident. The requester submitted a request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Ministry of the Attorney General (the Ministry) for any documentation which would demonstrate that the vehicle driven by the other driver involved in the accident (the offender) was stolen and/or uninsured. The appellants' representative seeks this information in order to make a claim against the Insurer of the appellants' parents' vehicle, under the Family Protection Endorsement in their motor vehicle liability policy. She indicates further that, without this information, she will be required to bring a motion in court to compel its production, with the attendant costs associated with such a proceeding. The Ministry denied access to all of the responsive records pursuant to the following sections of the Act : solicitor-client privilege - section 19; invasion of privacy - sections 21(1) and 49(b), with reference to section 21(3)(b). The appellants' representative appealed the Ministry's decision to deny access to the records. This office provided a Notice of Inquiry to the Ministry and to the appellants. Because the appellants made reference to matters pertaining to the deceased parents' estate, the parties were also asked to address the possible application of section 66(a) (personal representative of a deceased person) of the Act . Further, in the event that section 66(a) is applicable, the parties were also asked to address the possible application of section 49(a) (discretion to refuse requester's own information) of the Act . Representations were received from the appellants and the Ministry. RECORDS: The 38 pages of responsive records consist of an interview report, will say statement, vehicle data search printouts, reports, supplementary reports, documents supplied by insurance companies and correspondence to and from a Crown Attorney. DISCUSSION: PERSONAL REPRESENTATIVE OF THE DECEASED PERSONS The term "personal representative" in section 66(a) is not defined in the Act . However, section 66(a) relates to the administration of an estate of an individual and the meaning of the term must be derived from this context. An appellant would be able to exercise the deceased's right to request and be granted access to the deceased's personal information if she is able to demonstrate that she is the deceased's "personal representative" and that her request for access to the information "relates to the administration of the deceased's estate". The term "personal representative" in section 66(a) of the Act means an executor, an administrator, or an administrator with will annexed (Order P-294). The phrase "relates to the administration of the individual's estate" in section 66(a) should be interpreted narrowly to include records relating to financial matters to which the personal representative requires access in order to wind up the estate. In order for the appellants' representative to establish that she (or one of the children) is the personal representative of the children's parents, for the purposes of section 66(a) of the Act , the appellants' representative would be required to provide evidence of her authority to deal with the estate of the deceased. The production by the appellants' representative of letters probate, letters of administration or ancillary letters probate under the seal of the proper court would be necessary. [Orders M-919, M-1075 and PO-1654] Along with her submissions, the appellants' representative provided me with copies of several documents indicating that the brother of the deceased father has been appointed as Estate Trustee Without a Will of the estate of the deceased mother, and also the litigation guardian of the appellant children in an action against the offender and the Insurer of the parent's vehicle. The appellants' representative also provided me with the pleadings in that action. In its Statement of Defence, the Insurer pleads that the onus of proof is on the plaintiffs in that action (the surviving children, by their litigation guardian) to establish that the vehicle driven by the offender was not insured at the time of the accident. The appellants submit that without access to the information contained in the records, they are unable to establish that the offender had no insurance, thereby preventing recovery from the Insurer of the parent's vehicle. I am satisfied, based on my review of the pleadings in the action against the offender and the parents' Insurer, that the appellants' representative also acts for the Litigation Guardian, who has brought the action on behalf of the children. I have not, however, been provided with any evidence that the appellants' representative acts on behalf of the estate as the deceased parents' "personal representative," as is required by section 66(a). Nor have I been provided with any evidence that the request for access to the information contained in the records "relates to the administration of the deceased's estate." Accordingly, I am unable to find that the appellants' representative is able to exercise the right of access of the deceased parents to the requested information under section 66(a). PERSONAL INFORMATION Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual. "Personal information" is defined in section 2(1) of the Act . Only information which fits the definition can qualify for exemption under section 14. It is clear from the wording of the statute that the list of examples of personal information under subsection 2(1) is not exhaustive. This leaves it open for [the person who will be making the decision in this a
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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Jan 20, 2000
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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