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Document
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M-934
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Institution/HIC
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Halton Regional Police Services Board
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Summary
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NATURE OF THE APPEAL: The Halton Regional Police Services Board (the Police) received a requestunder the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The request was for records containing information about aboating accident which resulted in the death of a named individual. Theappellants are the named individual's sons. The Police identified a number ofrecords as responsive to the request and denied access to them, claiming theapplication of the following exemptions contained in the Act : law enforcement - section 8(2)(a) invasion of privacy - section 14(1) In addition, the Police advised the appellants that, pursuant to section54(a) of the Act , the records are only accessible to the personalrepresentative of a deceased person, where that individual requires theinformation to "administer the estate". I will address theapplication of section 54(a) to the circumstances present in this appeal below. The appellants appealed the Police decision to deny access to the records. A Notice of Inquiry was provided to the appellants, the Police and to anotherindividual whose rights may be affected by the disclosure of the records (theaffected person). Representations were received from all of the parties. Inhis representations, the affected person consented to the disclosure of hispersonal information to the appellants. The Police submit that because the information which it maintains regardingthis incident, as well as that contained in the national database maintained bythe Royal Canadian Mounted Police (also known as CPIC), describe the appellants'father as a "missing person", they are not prepared to accept thecharacterization of this individual as deceased. I note, however, that by orderof Mr. Justice Richard Huneault of the Ontario Court (General Division), theappellants were granted a Certificate of Appointment of Estate Trustee Without aWill. The Police were provided with a copy of the Certificate of Appointment. I am satisfied that the position of the Police is untenable, particularly inlight of the Order made by the Court. Clearly, the Ontario Court (GeneralDivision) is satisfied that it had been provided with sufficient evidence toestablish that the appellants' father is dead. I agree with the Court's findingon this issue for the purposes of this appeal. I will, therefore, now addressthe possible application of section 54(a) to the circumstances of this appeal. In Order M-927, Inquiry Officer John Higgins made the following commentsabout the application of section 54(a). He held that: This section merely provides that particular individuals may exercise therights of others under the Act in certain situations. Section 54(a) is not an exemption, and it does not create anabsolute prohibition on access to information about deceased persons byindividuals who do not qualify under it. In a request for the personal information of a deceased person, if section54(a) applies, it means that the institution applies the standards used where anindividual is requesting his or her own personal information. If an exemptionis to be applied, it would have to be one of the exemptions in section 38, whichmay apply in that situation, rather than the exemptions in sections 6 through15. On the other hand, where an individual who does not qualify under section54(a) requests a deceased individual's information, the institution applies thestandards used where an individual requests another individual's information, ormakes a request for general records. If an exemption is to be applied, it wouldhave to be found in sections 6 though 15. In this appeal, the Police have claimed that sections 8 and 14 apply topreclude access. In the circumstances of this appeal, the question to bedecided is not whether the appellant qualifies under section 54(a), but whetherthe claimed exemptions apply to the information at issue. In the present appeal, the Police have also claimed that sections 8 and 14apply to preclude access to the records. Because it appears that the appellantsmay satisfy the requirements of section 54(a), and because Page 9 of the recordscontains the personal information of the appellants, I asked the parties tosubmit further representations on the application of sections 38(a) and (b) tothe records, in addition to sections 8 and 14. Additional submissions werereceived from the Police only. DISCUSSION: RIGHT OF ACCESS BY A PERSONAL REPRESENTATIVE I will first consider whether, under section 54(a) of the Act , theappellants are entitled, as the Estate Trustee Without a Will of the estate ofthe deceased, to exercise the same right of access to the personal informationcontained in the records as the deceased. Under section 54(a), the appellants would be able to exercise the deceased'sright to request and be granted access to the deceased's personal information ifthey are able to: 1.demonstrate that they are the "personal representative" of thedeceased; and 2.demonstrate that their request for access "relates to theadministration of the deceased's estate". Personal Representative In Order M-919, Inquiry Officer Anita Fineberg reviewed the law with respectto section 54(a) and came to the following conclusions: The meaning of the term "personal representative" as it appearsin section 66(a) of the Freedom of Information and Protection of Privacy Act ,the equivalent of section 54(a) of the Act , was considered by theDivisional Court in a judicial review of Order P-1027 of this office. In Adamsv. Ontario (Information and Privacy Commissioner) (1996), 136 D.L.R. (4th)12 at 17-19, the court stated: Although there is no definition of "personal representative" inthe Act, when that phrase is used in connection with a deceased and theadministration of a deceased's estate, it can have only one meaning, which isthe meaning set out in the definition contained in the EstatesAdministration Act , R.S.O. 1990, c. E.22, s.1, the Trustee Act ,R.S.O. 1990, c. T.23, s.1; and in the Succession Law Reform Act ,R.S.O. 1990, c. S.26, s.1: 1(1) "personal representative" means an executor, anadministrator, or an administrator with the will annexed. ... The question to be decided is whether the person seeking theinformation is the personal representative of the deceased individual with thepower and authority to administer the deceased's estate. ... ... The executor may require certain financial information for theadministration of the estate, or even certain personal information in order topursue a lawsuit on behalf of the estate ... [emphasis added] Based on the court's analysis set out above, I am of the view that aperson, in this case the appellant, would qualify as a "personalrepresentative" under section 54(a) of the A
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Legislation
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MFIPPA
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14(3)(b)
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54(a)
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8(2)(a)
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Subject Index
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Published
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May 02, 1997
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Type
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Order
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