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Document
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M-622
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Institution/HIC
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Nepean 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 submitted a request to the Nepean Police Services Board (the Police) under the Act . This request pertained to the appellant's deceased brother, who apparently committed suicide. This sudden death, and a previous incident involving the appellant's brother, were both investigated by the Police. The appellant's request was for "... all details/facts/data/notes/photos ..." held by the Police regarding her brother. Before the request was submitted, the Police provided the appellant with informal access to the Sudden Death Report prepared in connection with her brother's death. However, in response to the formal request under the Act , the Police declined to provide access to any further records, under the following exemptions in the Act : invasion of privacy - section 14(1) law enforcement - section 8(2)(a). The appellant filed an appeal from this denial of access with the Commissioner's office. The Commissioner's office sent a Notice of Inquiry to the Police and the appellant, inviting these parties to submit representations. Both the Police and the appellant submitted representations. The records at issue consist of Police Reports, other Police forms completed in connection with the two investigations pertaining to the appellant's brother, firearm registration information, interview notes taken by Police, computer printouts, a witness statement, extracts from a police officer's notes, correspondence and memoranda. DISCUSSION: RIGHT OF ACCESS OF A PERSONAL REPRESENTATIVE In her representations, the appellant referred to her application for a Certificate of Appointment of Estate Trustee Without a Will with regard to her brother's estate. This application, when granted, would make the appellant her brother's personal representative. However, I have not been provided with confirmation that this application has been granted. Section 54(a) of the Act 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; Since individuals may have a greater right to receive records containing their own personal information than other individuals would have to that information, and since it appears that the records contain a great deal of personal information pertaining to the appellant's brother, the appellant's ability to obtain this information could be enhanced by section 54(a), if it applies. 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: 1. to demonstrate that she is the deceased's "personal representative" and 2. to demonstrate that her request for access "relates to the administration of the deceased's estate". In Order P-1027, Inquiry Officer Donald Hale considered the provisions of section 66(a) of the Freedom of Information and Protection of Privacy Act (the provincial Act ), which is the equivalent of section 54(a) of the Act . In that order, Inquiry Officer Hale expanded the situations in which an individual could be found to be a "personal representative", and also expanded the meaning of the phrase "relates to the administration of the deceased's estate", as compared to the interpretation of these two phrases in previous orders. In particular, Inquiry Officer Hale found that, where an individual's estate was not of sufficient value to merit an application for the appointment of a "personal representative", the husband of the deceased "could be likened to" a personal representative and on this basis, could meet the first criterion mentioned above. Previous orders had required individuals to demonstrate that they had been officially appointed as a "personal representative" before they could meet this criterion. He also concluded that the second criterion could be met, even if the proceeds of a contemplated lawsuit would not accrue to the estate itself, but to the survivors of the deceased, if "granting access to the requested records would enable the deceased's personal representative to make an informed decision about matters which relate to the estate." Previous orders had determined that, because lawsuits for wrongful death are not a cause of action accruing to the estate itself, but rather to the surviving spouse and relatives, requests made to facilitate such lawsuits do not "relate to the administration of the deceased's estate". I will bear in mind these interpretations from Order P-1027 in my assessment of whether the appellant in this case should be permitted to rely on section 54(a) of the Act . With regard to the first of these two requirements under section 54(a), I have not been provided with any evidence to indicate that the appellant's application referred to above, has been granted. The granting of the certificate referred to by the appellant would mean that she is, in fact, the deceased's "personal representative" within the meaning of this section. In my view, this situation is slightly different from the one in Order P-1027. Here, the application has been made. It is possible that such an application could be opposed, and that some other individual could in fact become the personal representative. Under these circumstances, I am not prepared to conclude that the appellant is the deceased's "personal representative" within the meaning of section 54(a). For this reason alone, a conclusion that the appellant cannot rely on section 54(a) in this case would be justified. However, since the appellant has evidently applied to become her brother's personal representative, it may be helpful to explain that, in my view, the second requirement under section 54(a) has also not been met because the request does not "relate to the administration" of the appellant's brother's estate. My reasoning in reaching this conclusion is set out in the paragraphs which follow. In the appellant's letter of appeal and representations, she sets out information which
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Legislation
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Subject Index
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Published
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Oct 20, 1995
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Type
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Order
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