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P-945

Document		P-945


File #		P-9500052


Institution/HIC		Ministry of the Solicitor General and Correctional Services


Summary		NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The appellant, represented by counsel, submitted a request to the Ministry of the Solicitor General and Correctional Services (the Ministry). The request was for copies of any and all reports in the Ministry's possession respecting the death of a named individual (the affected person) who died in an automobile accident which also resulted in the death of the appellant's wife and daughter, who were riding bicycles. In particular, the request sought access to copies of the coroner's report pertaining to the affected person, dated May 8, 1994, and any medical records relevant to the condition of the affected person before death and at the time of death. The Ministry responded by denying access pursuant to the following exemption in the Act : invasion of privacy - section 21(1). The appellant, by his counsel, filed an appeal from this denial of access. The records at issue are as follows (page numbers are those assigned by the Ministry): Record 1: Post Mortem Examination Report re affected person (record pages 8-13) Record 2: Morgue Death Report re affected person (record page 14) Record 3: Report of the Centre of Forensic Sciences (record page 16) Record 4: Coroner's Investigation Statement and attached Supplementary Statement form (record pages 20 and 21) Record 5: Coroner's Investigation Statement and attached Supplementary Statement forms (record pages 24, 25 and 26). Pages 22 and 23 are identical to Record 4, and accordingly, I will not consider them in this order. A Notice of Inquiry was sent to the appellant and the Ministry. It was not possible to notify anyone on behalf of the affected person, because he is deceased and no personal representative has been appointed. The Notice of Inquiry raised the possible application of section 49(b), which provides an exemption regarding invasion of privacy in circumstances where the records contain the appellant's personal information. In response to the Notice of Inquiry, representations were received from the appellant and the Ministry. DISCUSSION: INVASION OF PRIVACY 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. One of the categories enumerated in the definition of personal information is "information relating to the ... medical ... history of the individual ...". On the question of whether the records should be found to contain the affected person's personal information, the appellant submits that ... the definition of "identifiable individual" should not be extended to deceased persons where there is no legal representative unless the legislation says so in clear and explicit terms. In such circumstances s. 2(2) should be read as applying only to deceased persons who have had a legal representative. Section 2(2) of the Act , which the appellant refers to in the submission just quoted, states as follows: Personal information does not include information about an individual who has been dead for more than thirty years. In my view, section 2(2) makes it abundantly clear that the legislature intended to extend the Act 's privacy protection provisions to deceased individuals, unless they have been dead for more than thirty years. I am not at all convinced by the appellant's argument that this should only apply to individuals for whom a personal representative has been appointed. I am unable to find any provision in the Act to support such a view. Moreover, it would result in an uneven and unfair application of the Act 's privacy protection provisions regarding deceased persons, favouring those whose circumstances warrant the appointment of a personal representative. I have reviewed the records at issue to determine whether they contain personal information, and if so, to whom the personal information relates. Record 1, the Postmortem Examination Report, contains information relating to the medical history of the affected person. It does not contain any personal information pertaining to other individuals. On this basis, I find that Record 1 contains the personal information of the affected person only. Records 2, 4 and 5 also contain information relating to the medical history of the affected person. In addition, they include brief references to other individuals involved in the accident. I find that these records contain the personal information of the affected person and several other individuals. Record 3 contains the identities of the individuals killed in the accident. I find that this constitutes the personal information of the affected person, as well as the appellant's wife and daughter. I also find that none of the personal information in any of the records pertains to the appellant. As previously noted, the Notice of Inquiry raised the possible application of the exemption provided by section 49(b) of the Act . That section can be claimed to prevent unjustified invasions of personal privacy with respect to records containing a requester's personal information. In this case, I have found that the records do not contain the appellant's personal information. Accordingly, section 49(b) is not applicable in this appeal. The other exemption relating to personal privacy which is at issue in this appeal is section 21(1). Once it has been determined that a record contains personal information, section 21(1) of the Act prohibits the disclosure of this information unless one of the exceptions listed in section 21(1)(a) through (f) applies. In this appeal, the only one of these exceptions which could apply is section 21(1)(f), which provides an exception to this mandatory exemption "if the disclosure does not constitute an unjustified invasion of personal privacy". Sections 21(2), (3) and (4) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of personal privacy.


Legislation		FIPPA 21(2)(d) 21(3)(a) 21(3)(b)


Subject Index		Coroners Act person is deceased


Signed by		John Higgins


Published		Jun 28, 1995


Type		Order


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