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P-1093

Document		P-1093


File #		P-9500519


Institution/HIC		Public Guardian and Trustee


Summary		NATURE OF THE APPEAL: The Public Guardian and Trustee (the Trustee) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for all records relating to the capacity assessment of the requester's son undertaken by the Trustee. The Trustee located one record which was responsive to the request and denied the requester access to it, based on the following exemptions contained in the Act : invasion of privacy - sections 21 and 49(b) The record at issue is a 12-page Certificate of Incapacity to Manage Property prepared pursuant to section 16(3) of the Substitute Decisions Act, 1992 (the SDA ). The requester appealed the Trustee's decision to deny access. A Notice of Inquiry was provided to the appellant, the Trustee and to the appellant's son and his wife (the affected persons). Representations were received from all of the parties. As well as being the head under the Act , the Trustee is also the guardian of property for the appellant's son for the purposes of section 66(b) of the Act which states: Any right or power conferred on an individual by this Act may be exercised, by the individual's attorney under a continuing power of attorney, the individual's attorney under a validated power of attorney for personal care, the individual's guardian of the person, or the individual's guardian of property; The parties to this appeal agree that section 66(b) of the Act confers upon the Trustee in its capacity as the guardian of property all rights or powers under the Act of the appellant's son, who is the subject of the Certificate. Accordingly, there is no dispute as to the ability of the Trustee to act both as the head and the representative of an affected person in this appeal. Accordingly, the Trustee submitted representations on its own behalf and in its capacity as the guardian of property of the appellant's son. DISCUSSION: INVASION OF PRIVACY The Act defines personal information, in part, as recorded information about an identifiable individual. Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 49 provides a number of exceptions to this general right of access. Under section 49(b) of the Act , where a record contains the personal information of both the appellant and other individuals and the Trustee determines that the disclosure of the information would constitute an unjustified invasion of another individual's personal privacy, the Trustee has the discretion to deny the appellant access to that information. Where, however, the record only contains the personal information of other individuals, and the disclosure of this information would constitute an unjustified invasion of the personal privacy of these individuals, section 21(1) of the Act prohibits an institution from releasing this information. In both of these situations, sections 21(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of personal information would constitute an unjustified invasion of the personal privacy of the individual to whom the information relates. In my view, the record as a whole contains primarily the personal information of the appellant's son, who is the subject of the Certificate. The record also contains the personal information of individuals other than the son or the appellant. The appellant's personal information is found in only a few discrete portions of the record. The Trustee has applied sections 21 and 49(b) of the Act to the record at issue. Accordingly, I will assess the application of section 21 to the personal information of individuals other than the appellant and the appellant's personal information under section 49(b). PERSONAL INFORMATION OF INDIVIDUALS OTHER THAN THE APPELLANT The Certificate was completed by an assessor as defined by section 1(1) of the SDA . The assessor provided her opinion as to the son's capacity to manage property and the basis upon which that opinion was reached. She also listed the documentation which she reviewed and persons whom she interviewed. In her representations, the appellant's son's wife submits that disclosure of the record may have a direct, negative effect on her and her husband (section 21(2)(e) - unfair exposure to pecuniary or other harm). She also submits that section 21(3) of the Act applies because the record contains information regarding the medical and psychological history (section 21(3)(a)) and the finances (section 21(3)(f)) of her husband. The Trustee, acting both as head and as guardian of property for the appellant's son, submits that presumptions found in section 21(3) apply to the record because it relates to the son's medical and psychological condition as well as his financial and educational history. The appellant submits that although section 21(3) of the Act might be applied, the issue in this case is whether disclosure of the record would constitute an unjustified invasion of personal privacy. He refers to section 21(1)(f) of the Act which states: A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except, if the disclosure does not constitute an unjustified invasion of personal privacy. The appellant argues that it would be reasonable to conclude that he is aware of his son's views, and probably also those of his son's wife because of the close familial connection between himself and his son and the fact that, until recently, the son lived with him. The appellant further states that it would also be reasonable to conclude that he would be aware of the son's educational or medical history or evaluation. The appellant further submits that it is the intention of the assessment contained in the Certificate, and the statutory duty of the Trustee, to act in his son's interests. If the sharing of the information in the Certificate can reasonably be considered to be of benefit to his son, then the disclosure of the information at issue cannot be considered unjustified. At the same time, if the assessment is not complete and the conclusions reached are not accurate, the extent to which his son is perceived to be able to give instructions may be inaccurate.


Legislation		FIPPA 21(3)(a) 21(3)(d) 21(3)(f) 21(3)(g) 49(b) 66(b)


Subject Index		Capacity Assessment Records


Signed by		Donald Hale


Published		Jan 05, 1996


Type		Order


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