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Document
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M-426
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Institution/HIC
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Ottawa Police Services Board
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The Ottawa Police Services Board (the Police) received a request for access to information related to the requester's father, including the types of charges laid against him, sentencing details and medical problems and treatment. Enclosed with the request was documentation attesting to the fact that the requester had been granted Letters of Administration with respect to the estate of her deceased father (the deceased) who died on November 22, 1971. The Police identified the following records as being responsive to the request: Page 1: Criminal Conviction, Conditional and Absolute Discharge and Related Information Sheet Pages 2-6: Index Cards, Including Name of the Deceased, Date and Notation of Existence of a Report on the Deceased Pages 7-15: Occurrence and Investigation Reports The Police denied access to these records in their entirety on the basis of the following exemption: invasion of privacy - section 14(1) The requester appealed the decision of the Police. A Notice of Inquiry was sent to the appellant and the Police. Representations were received from the Police and counsel for the appellant. DISCUSSION: RIGHT OF ACCESS BY A PERSONAL REPRESENTATIVE Section 2(1) of the Act defines "personal information", in part, to include an 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. I have reviewed the information contained in the records and find that it satisfies the definition of personal information. I further find that the information contained on Pages 1-6, 8, 12, 13, and 14 relates solely to the deceased while that on Pages 7, 9-11, and 15 relates to the deceased and other identifiable individuals. None of the information contained in the records relates to the appellant. Section 2(2) provides that personal information does not include information about an individual who has been dead for more than 30 years. Since the deceased died 23 years ago, section 2(2) does not apply in the circumstances of this case. Section 36 of the Act gives an individual a general right of access to his/her own personal information. In addition, the appellant argues that under section 54(a) of the Act , she is entitled, as the personal representative of the deceased, to exercise the same right of access to the personal information contained in the records as the deceased. Under section 54(a), the 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: 1. demonstrate that she is the "personal representative" of the deceased; and 2. demonstrate that her request for access "relates to the administration of the deceased's estate". The appellant provided the Police with a notarized copy of an Order of the Ontario Court (General Division) which granted to her, on May 31, 1994, Letters of Administration of the deceased's estate. Based on this documentation, the Police agree that the appellant has established that she is in fact the "personal representative" of the deceased's estate. I also accept this proposition. Thus the first part of the section 54(a) test has been met. The appellant is further required, however, to demonstrate that the request for access relates to the administration of the deceased's estate . On the same date that the Letters of Administration were issued, the appellant, the estate and a motion picture production company entered into an agreement whereby the production company was to produce a documentary film based on the life experiences of the deceased and their effects on the appellant. Included in this agreement is a description of the rights, obligations and remuneration of the three parties. Counsel for the appellant has highlighted the following provisions of the agreement as supporting the view that the appellant's request for access is related to the administration of the estate of the deceased. The estate is to receive remuneration and be reimbursed for certain expenses. The estate grants the production company certain rights with respect to the access to and cooperation in securing access to archival material concerning the estate. The estate releases the production company against any claims for a breach or invasion of privacy in any personal rights of the deceased. The estate and the appellant both have a positive duty to use their best efforts to ensure the accuracy of the research and archival materials. Previous orders of the Commissioner's office have held that the phrase "relates to the administration of the individual's estate" should be interpreted narrowly to include records relating to financial matters to which the personal representative requires access to wind up the estate (Orders M-205, M-206 and M-400). The Police maintain that the records at issue do not relate to financial matters; rather they are investigations into possible violations of law. Therefore, they maintain that the appellant has not established that the records are required to wind up the estate. There is no question that the estate is a party to an agreement respecting an ongoing commercial venture in which there are various financial interests at stake. However, in my opinion the fact that the estate has certain financial rights and obligations pursuant to the production agreement does not mean that the appellant, as administratrix, requires the records to wind up the estate. The records do not involve matters concerning the gathering in of assets and paying out of debts of the estate. Receipt of the requested information may indirectly result in a financial benefit to the estate in the sense that the production may have greater market potential based on the inclusion of archival documentation, including the information the appellant has requested from the Police. However, such a "potential asset" does not satisfy the second criterion of section 54(a) (Order M-243). Accordingly, the appellant cannot rely on section 54(a) to obtain access to the records. I must now determine whether disclosure of the deceased's personal information would result in an unjustified invasion of privacy, bearing in mind that becaus
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Legislation
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MFIPPA
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14(2)
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14(3)
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54(a)
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Section 16
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Subject Index
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Published
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Dec 02, 1994
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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