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PO-1715

Document		PO-1715


File #		PA-980330-1


Institution/HIC		Niagara Parks Commission


Summary		BACKGROUND: During a visit by a family to the Niagara Gorge, the 17 year old son fell into the Niagara River and drowned. The man's body was recovered by the United States Coast Guard. The Office of the New York State Niagara County Coroner pronounced the man dead and communicated its findings to the Niagara Parks Commission (the NPC), the public body with jurisdiction over the Niagara Gorge property. The NPC conducted an investigation into the circumstances surrounding the death. Statements were taken from family members and other witnesses as part of the investigation. A Sudden Death Report and Supplementary Report were also prepared. NATURE OF THE APPEAL: The NPC received a request under the Freedom of Information and Protection of Privacy Act (the Act ) from counsel representing the family of the deceased man for a copy of all records pertaining to the investigation. The request encompassed all file documentation, investigating officer notes, witness statements and reports of other emergency services, such as ambulance, coast guard and fire department. The NPC identified 12 responsive records. It granted access in full to one record (a Niagara Parks Police Bulletin) and denied access to the other 11 pursuant to section 21(1) of the Act (invasion of privacy). The response letter provided to the requester included the following statements: ... I have taken into consideration the fact that many of the records are personal to a deceased individual, but, according to the Act, the individual's privacy must be protected for a period of thirty years [Section 2(2)]; that despite the fact that you have stated you are acting for the deceased's family, I cannot accept their authority as he was over the age of sixteen [Section 66(c)]; and that the information contained in these records would not appear to be beneficial to the administration of this individual's estate [Section 66(a)]. An index describing the records was attached to the NPC's response letter. The requester appealed this decision. Because the requester represents all members of the deceased individual's immediate family, I will refer to him and these family members collectively as "the appellant" in the remainder of this order. Mediation was not successful and I sent a Notice of Inquiry to the appellant, the NPC and two individuals named in the records who were witnesses to the incident (the affected persons). Because it appeared that some records contained the personal information of certain family members, section 49(b) was added as an exemption claim in the Notice. Because of the particular facts and circumstances of this appeal, I determined that the outcome could have implications beyond the interests of the parties. For this reason, I added issues in the Notice of Inquiry which relate to the law of presumptions as it applies to section 21(3)(b) of the Act , the doctrine of stare decisis , and the applicability of the Divisional Court's ruling in the case of John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767 (the John Doe case) to the present appeal. I provided copies of the Notice to the following institutions and/or organizations, allowing them the opportunity to submit representations regarding these issues: Management Board Secretariat, the Ministry of the Attorney General, the Ministry of the Solicitor General and Correctional Services, the Society of Ontario Adjudicators and Regulators, the Association of Chiefs of Police for Ontario, and Bereaved Families of Ontario. Representations were received from the appellant, the NPC and the two affected persons. I also received representations from the Ministry of the Attorney General (the Attorney General). Unfortunately, none of the other notified institutions or organizations responded to the Notice of Inquiry. RECORDS: The records total 33 pages and consist of a Sudden Death Report and Supplementary Report prepared by the NPC, a Supplementary Report prepared by the Niagara Regional Police Service, a checklist, a dispatcher chronology, witness information and statements, a CPIC incident history, correspondence to witnesses, and a memorandum received from the New York State Niagara County Coroner's office. PRELIMINARY MATTERS: RIGHT OF ACCESS BY A PERSONAL REPRESENTATIVE As noted earlier, in its original response to the appellant, the NPC outlined its reasons for concluding that sections 66(a) and (c) were not applicable. The draft Report of Mediator issued to the parties at the conclusion of mediation also stated: The appellant confirmed that the records are not relevant to the administration of the victim's estate. This statement was not disputed by the appellant during the time period allowed for revisions to the draft Report. However, in the representations provided in response to the Notice of Inquiry, the appellant submits that he is entitled to access to the deceased's personal information as the personal representative and guardian, pursuant to sections 66(a) and (b) of the Act . These sections state: Any right or power conferred on an individual by this Act may be exercised, (a) 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; (b) by the individual's attorney under a continuing power of attorney, the individual's attorney under a power of attorney for personal care, the individual's guardian of the person, or the individual's guardian of property; The appellant states that if the deceased were alive he would be entitled to access to his own personal information under section 47(1) and: ...[a]s [the son] is deceased, s. 66 empowers his parents with the same s. 47(1) rights to access his personal information ... as their son's guardians and personal representatives of [the son's] estate. I disagree with the appella


Legislation		FIPPA 21(2)(a) 21(2)(b) 21(2)(d) 21(3)(b) 66(c) 66(a)


Subject Index		person is deceased rebutting presumption of


Signed by		Tom Mitchinson


Published		Sep 17, 1999


Type		Order


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