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M-205

Document		M-205


Institution/HIC		Niagara Regional Police Services Board


Summary		ORDER BACKGROUND: The Niagara Regional Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to the following records about a now deceased individual (the deceased): 1) Copies of documents relating to certain allegations against the deceased. 2) Copies of documents relating to the criminal investigation and the subsequent charges laid against the deceased. 3) Copies of all investigation reports and notes taken by the investigating officers. 4) Copies of any investigation reports or files relating to the death of the deceased. Attached to the request was a copy of the last will and testament of the deceased appointing his wife as the sole executrix of his will. The requester indicated that he was authorized to request the information on behalf of the executrix. The requester provided the Police with an authorization to that effect signed by the executrix. Pursuant to section 21 of the Act , the Police notified seven individuals whose interests might be affected by the disclosure of the information at issue. The three individuals who responded to the notice objected to the disclosure of any of their personal information contained in the records. The Police then issued a decision denying access in total to the requested records on the basis of the exemptions provided by sections 8(2)(a), 14, 38(a) and 38(b) of the Act . The Police indicated that they had considered the application of section 54(a) to the request, but decided that it did not apply because, amongst other reasons, "... there are no terms or conditions in the Will which would require access to the information you have asked for in order to administer the estate as outlined". The requester appealed the decision of the Police. In the course of mediation, the Police provided the requester with access to some of the responsive records and identified, in a new decision letter, the specific exemptions applied to deny access to the remaining records. In addition to the exemptions cited previously, the Police claimed the application of the exemptions in sections 8(1)(c) and 15 of the Act . Further mediation was not successful and notice that an inquiry was being conducted to review the decision of the Police was sent to the Police and the appellant. Representations were received from both parties. In their representations, the Police indicate that they are no longer relying on the discretionary exemption found in section 8(1)(c) of the Act . On August 6, 1993, while these representations were being considered, Commissioner Tom Wright issued Order M-170 which interpreted several statutory provisions of the Act in a way which differed from the interpretation in previous orders. Since a new approach to the operation of the Act was being adopted and because the same statutory provisions are at issue in the present appeal, it was determined that copies of Order M-170 should be provided to the parties. The parties were then given the opportunity to state whether the contents of Order M-170 would cause them to change or supplement the representations which they had previously made. Additional representations were received from the Police only. THE RECORDS: The records which remain at issue and the exemptions claimed for each are identified as follows: 1) Pages 2-12 (Supplementary Report): Sections 8(2)(a), 14, 38(a) and (b) 2) Portions of pages 14, 16, 19 and 80 (Notes regarding Incident): Section 14 3) Page 27 (Page 1 of a working file folder): Sections 8(2)(a), 14, 38(a) and (b) 4) Pages 29-35 (Three witness statements): Section 8(2)(a), 14, 38(a) and (b) 5) Pages 36-39 (Notes re: interview with deceased): Sections 8(2)(a), 14, 38(a) and (b) 6) Page 45 (Copy of undertaking entered into by the deceased): Section 15(a) The Police have not claimed that the exemption provided by section 14 of the Act applies to Record 6. However, because the personal information exemption found in this section of the Act is mandatory unless one of the exceptions listed in section 14(1) is applicable, I propose to consider the application of section 14 to Record 6 as well. ISSUES/DISCUSSION: The issues arising in this appeal are as follows: A: Whether the information contained in Records 1-6 qualifies as "personal information" as defined in section 2(1) of the Act . B: Whether section 54(a) of the Act applies to the records in the circumstances of this appeal. C: If the answer to Issue A is yes, whether the mandatory exemption provided by section 14 of the Act applied to Records 1-6. D: Whether the discretionary exemption provided by section 8(2)(a) of the Act applies to Records 1-6. E: Whether the discretionary exemption provided by section 15(a) of the Act applies to Record 6. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the information contained in Records 1-6 qualifies as "personal information" as defined in section 2(1) of the Act . Section 2(1) of the Act states, in part: "personal information" means recorded information about an identifiable individual, ... Records 1-6 contain information relating to the allegations made against the deceased as well as statements made by various individuals during the course of the Police investigation into these allegations. These records also contain information relating to the charges laid against the deceased and his death. In my view, the records contain recorded information about the deceased and other identifiable individuals and therefore qualify as personal information as defined in section 2(1) of the Act . As the death occurred within the past 30 years, section 2(2) of the Act does not apply. The records do not contain any personal information of the appellant. ISSUE B: Whether section 54(a) of the Act applies to the records in the circumstances of this appeal. Under Issue A, I have found that the records contain the personal information of the deceased as well as that of other identifiable individuals. Section 36 of the <


Legislation		MFIPPA 14(3)(b) 2(1) personal information 54(a)


Subject Index		administration of estate personal representative


Published		Oct 26, 1993


Type		Order


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