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Summary
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NATURE OF THE APPEAL: Three individuals died in a traffic accident while being pursued by members of the Toronto Police Service. In accordance with established practice, the Ministry of the Attorney General's Special Investigations Unit (the SIU) conducted an investigation into the circumstances leading to the accident and prepared a report to the Attorney General and the Chief of Police. The Ministry of the Attorney General (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) from a lawyer representing the brother of one of the deceased individuals. The request asked for "…a copy of the Director's Special Investigations Unit Report along with any and all notes and records pertaining to the SIU investigation." The Ministry identified 79 responsive records. It granted access to Records 64 and 65 in full and partial access to Record 26. The Ministry denied access to the rest of the records and the undisclosed portions of Record 26 pursuant to the following exemptions in the Act : section 14(2)(a) - law enforcement report section 21 - invasion of privacy The Ministry identified the presumption in section 21(3)(b) in support of the section 21 claim. The requester, now the appellant, appealed the Ministry's decision. During mediation, the Ministry provided the appellant with an index describing the records. Also during mediation, the appellant raised the possible application of section 66 of the Act , claiming that he is the administrator of his brother's estate and that the information being sought relates to the administration of the estate. However, the appellant did not provide evidence of his appointment as estate administrator. Mediation was not successful, so the file was transferred to the adjudication stage of the appeal process. I began my inquiry by sending a Notice of Inquiry to the Ministry, outlining the facts and issues in the appeal and seeking representations. The Ministry provided representations, which were in turn shared with the appellant. The appellant also submitted representations. In his representations the appellant provided additional details regarding section 66, and also raised the possible application of the public interest override in section 23 of the Act . I then gave the Ministry an opportunity to respond to these two issues, and received additional representations in reply. RECORDS: The 77 records at issue in this appeal are described in the index provided to the appellant by the Ministry during mediation. They consist of all documentary materials gathered during the course of the SIU investigation into the motor vehicle accident that resulted in the death of the appellant's brother. The records include internal administrative documents and reports, correspondence, police officers' statements, witness statements, police officers' notes, CPIC information, police communication tapes, audio and video recordings of witness statements, a CD of photographs, and the SIU Director's Report that summarizes the results of the investigation. Both exemptions are claimed for all records. DISCUSSION: PERSONAL REPRESENTATIVE General Principles Section 66(a) reads: Any right or power conferred on an individual by this Act may be exercised, where the individual is deceased, by the individual's personal representative if exercise of the right or power relates to the administration of the individual's estate. Under this section, the appellant is able to exercise the deceased's right to request and be granted access to the deceased's personal information if he can demonstrate: that he is the "personal representative" of the deceased; and that his request for access "relates to the administration of the deceased's estate". (Orders M-1075 and MO-1241) If both requirements of section 66(a) are established, the appellant is entitled to stand in the place of the deceased for the purposes of making a request for access to the deceased's personal information under section 47(1) of the Act (Orders M-927, MO-1315, MO-1365). Personal Representative For section 66(a) to apply, the appellant must first establish evidence of his authority to deal with the estate of the deceased. In Order M-919, Adjudicator Anita Fineberg reviewed the law with respect to section 66(a) and came to the following conclusions: The meaning of the term "personal representative" as it appears in section 66(a) of the Freedom of Information and Protection of Privacy Act … was considered by the Divisional Court in a judicial review of Order P-1027 of this office. In Adams v. Ontario (Information and Privacy Commissioner) (1996), 136 D.L.R. (4 th ) 12 at 17-19, the court stated: Although there is no definition of "personal representative" in the Act , when that phrase is used in connection with a deceased and the administration of a deceased's estate, it can have only one meaning, which is the meaning set out in the definition contained in the Estates Administration Act , R.S.O. 1990, c. E.22, s. 1, the Trustee Act , R.S.O. 1990, c. T.23, s.1; and in the Succession Law Reform Act , R.S.O. 1990, c. S.26, s.1. 1(1) "personal representative" means an executor, an administrator, or an administrator with the will annexed. … I am of the view that a person, in this case the appellant, would qualify as a "personal representative" … if he or she is "an executor, an administrator, or an administrator with the will annexed with the power and authority to administer the deceased's estate I agree with this analysis. In order for the appellant to establish that he is the deceased's personal representative for the purposes of section 66(a), he must provide evidence of his authority to deal with the deceased's estate. The appellant's production of a Certificate of Appointment as Estate Trustee under the seal of the proper court is necessary to establish the requisite authority. The appellant's brother died intestate. The appellant states that he qualifies as the administrator of the estate and provides an uncommissioned Certificate of Appointment of Estate Trustee with his representations. The appellant acknowledges that the Certificate has not been filed with the Court Registrar, but maintains that this will occur. The Ministry submits: By the appellant's own admission, however, [his appointment as Estate Trustee] has not happened yet. Until such time as the appellant's application for a Certificate of Appointment of Estate Trustee has been duly court-approved, it is the Ministry's position that the appellant is not the "personal representative" of the deceased's estate and, consequently, cannot rely on section 66(a) of the Act . The Ministry relies on Orders P-294 and M-243 in support of its position. I concur with the Ministry. Until the appellant's application for a Certificate of Appointment as Estate Trustee receives court approval, he is not the administrator of his brother's estate, and is not entitled to utilize the provisions of section 66(a) of t
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