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Document
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M-384
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Institution/HIC
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Metropolitan Toronto 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 appellant has requested copies of all records from the Metropolitan Toronto Police Services Board (the Police) relating to the death of her husband. Portions of the following records are at issue in this appeal: a one-page Homicide and Sudden Death Report (Record 1) a four-page Supplementary Report (Record 2) eight pages of police officers' notes (Records 3, 4 and 5). In addition to the portions of records noted above, the Police also denied access to nine photographs of the deceased, and these are also at issue in this appeal. The Police indicated further that some portions of records have been withheld as they do not pertain to the request. The non-responsive portions consist of parts of the police officers' notebooks. By agreement of the appellant, these portions of the records are not at issue in this appeal. The Police rely on the following exemptions in denying access to the records and parts of records: invasion of privacy - sections 14(1) and 38(b). A Notice of Inquiry was provided to the appellant and the Police. Representations were received from the appellant. The Police chose not to respond to the Notice of Inquiry. Pursuant to section 42 of the Act , where the Police refuse access to a record or part of a record, the burden of proof that one of the exemptions applies to the information which has been withheld lies upon the Police. In the absence of representations, I would, in most cases, not consider the possible application of a discretionary exemption. Section 14, however, is a mandatory exemption. I will, therefore, consider the possible application of this exemption to the records at issue. Section 38(b) is a discretionary exemption. Because of the personal privacy implications of this section, I will also consider its possible application to the records at issue. PRELIMINARY MATTER: Section 36(1) of the Act gives individuals a general right of access to their own personal information held by a government body. In addition to the general right of access an individual has to his or her own personal information, section 54(a) provides that: Any right or power conferred on an individual by this Act may be exercised, if 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; If it is determined that the records contain the personal information of the deceased, the appellant would be able to exercise the deceased's right to request the deceased's personal information, if she is able to demonstrate that she is the deceased's "personal representative" and that her request for access to the information "relates to the administration of the deceased's estate". In submitting her request to the Police, the appellant attached a copy of her husband's will and indicated that she was making this request in her capacity as executrix of the estate of her husband. The Police invited the appellant to make representations to verify the relevance of the requested information to the administration of her husband's estate. The appellant did not make representations to the Police concerning this issue. In her letter of appeal and representations in response to the Notice of Inquiry, the appellant indicates that she and her husband had a small business and that she requires the photographs to verify equipment, materials and products which were stored where the incident occurred. She submits that verification is necessary to account for missing inventory in the settling of her husband's estate. The term "personal representative" in section 54(a) of the Act means an executor, an administrator, or an administrator with will annexed (Order P-294). In this case, it is clear that the appellant is the deceased's personal representative within the meaning of section 54(a) of the Act . The remaining issue relating to section 54(a) is whether the request constitutes the exercise of a right or power which "relates to the administration of the deceased's estate". The rights of a personal representative under section 54(a) are narrower than the rights of the deceased person. That is, the deceased retains his or her right to personal privacy except insofar as the administration of his or her estate is concerned. The personal privacy rights of deceased individuals are expressly recognized in section 2(2) of the Act , where "personal information" is defined to specifically include that of individuals who have been dead for less than thirty years. In order to give effect to these rights, I believe that the phrase "relates to the administration of the individual's estate" in section 54(a) should be interpreted narrowly to include only records which the personal representative requires in order to wind up the estate. In reviewing the records, I am of the view that the exercise of the right of access sought by the appellant does not relate to the administration of the estate of the deceased in the sense contemplated by section 54(a). Therefore, the appellant is not entitled to exercise the deceased's rights regarding this information under section 54(a) of the Act . Accordingly, the appellant's request for information relating to the deceased is in her personal capacity, and is subject to examination pursuant to the provisions of sections 14 and 38(b) of the Act . 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. I have reviewed the information at issue and I make the following findings: the information which has been withheld from Records 1, 3 and 5 satisfies the definition of personal information. In my view, the personal information is about the deceased only; the information contained in Record 2 satisfies the definition of personal information. In my
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Legislation
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Subject Index
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Published
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Sep 08, 1994
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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