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Summary
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NATURE OF THE APPEAL: The requester in this case is a lawyer representing the estate of a named deceased person. She is also the deceased person’s sister. Under the Municipal Freedom of Information and Protection of Privacy Act (the Act ), the requester asked the Ottawa Police Services Board (the Police) for access to the report prepared following the investigation into her sister’s death. She also wanted all the background information related to the preparation of the report, including notes of any interviews conducted. The Police identified a number of responsive records and provided the requester portions of one of them, specifically the first page of her own statement to the Police. The Police denied access to the rest of the information on the basis of the following exemptions in the Act : Section 8(2)(a) (law enforcement report) and section 38(a) (discretion to refuse requester’s own information) in conjunction with section 8(2)(a). Section 14(1) (invasion of privacy) and section 38(b) (unjustified invasion of another individual’s personal privacy). The Police identified the presumptions in section 14(3)(a) and (b) in support of the section 14(1) and section 38(b) claims. The requester (now the appellant) appealed the Police’s decision. During mediation, the Police disclosed the rest of the appellant’s statement, as well as portions of five other records containing information about her. The Police also clarified that some of the information contained in the records was not disclosed because it was not responsive to the request. Finally, the Police sent the appellant an index of records identifying the withheld records and the exemptions applied to each of them. For her part, the appellant indicated that she was relying on section 54 of the Act to make this request. Where an individual has died, section 54 allows that individual’s personal representative to exercise his/her rights under the Act , as long as the exercise of those rights relates to the administration of the individual’s estate. The appellant also indicated during mediation that she did not accept that certain withheld portions of records were non-responsive. Accordingly, the responsiveness issue and section 54 were added as issues in the appeal. At the completion of mediation, the file was transferred to the adjudication stage. This Office initiated an inquiry by sending a Notice of Inquiry to the Police, setting out the facts and issues and soliciting representations. The Police responded with representations, which were then shared with the appellant. The appellant in turn provided representations. The Police were then invited to reply to the non-confidential portions of the appellant’s representations, which they did. I offered the appellant the opportunity to respond to these reply representations, and she submitted a brief final reply. RECORDS: The Police identified a total of 74 pages of responsive records. Pages 18, 19 and 65-72 have been disclosed to the appellant in full, and pages 2, 5, 21 and 47 in part. The disclosed portions consist of the statement provided by the appellant to the Police during the course of investigating her sister’s death, as well as portions of other documents reflecting information about the appellant obtained in this context. The remaining records are described as follows: A 28-page General Occurrence Report reflecting the results of the Police’s investigation. Pages 18 and 19 and portions of pages 2, 5 and 21 (all of which form part of the Report), have been disclosed to the appellant, as described above. An 18-page witness statement provided to the Police during the investigation (Pages 29-46). Nineteen pages of Police officers’ notebook entries (Pages 47-64A). Portions of page 47 have been disclosed to the appellant, as described above. DISCUSSION: RESPONSIVENESS The Police have withheld portions of pages 47, 48, 52, 53, 54, 55, 62, 63, 63A, 64 and 64A on the basis that they contain non-responsive information. The Police explain in their representations that these portions of Police officer notebook entries relate to activities undertaken by the officers on the same day as activities relating to the investigation of the appellant’s sister’s death, but involve entirely different investigations or other policing activity. I have reviewed the withheld portions of these pages and, with the exception of one portion of Page 64A, I confirm that they are not reasonably related to the subject matter of the appellant’s request, and are therefore not responsive (Order P-880). One entry on page 64A refers to a phone conversation between a Police officer and the appellant made during the course of the investigation. This portion is responsive to the request and I will consider it along with other responsive records in the discussion that follows. PERSONAL REPRESENTATIVE General principles Section 54(a) states: 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; Under this section, the appellant can exercise the deceased’s right of access under the Act if she can demonstrate that she is the personal representative of the deceased, and the right she wishes to exercise relates to the administration of the deceased’s estate. If the appellant meets the requirements of this section, then she is entitled to have the same degree of access to the personal information of her sister as her sister would have had when alive, and the request would be treated as though it came from the deceased sister herself [Orders M-927; MO- 1315]. Personal representative The term “personal representative” means an executor, an administrator, or an administrator with the will annexed with the power and authority to administer the deceased’s estate [ Adams v. Ontario (Information and Privacy Commissioner) (1996), 136 D.L.R. (4th) 12 at 17-20 (Ont. Div. Ct.)]. The term “estate trustee” is also used to describe such an individual [Order MO-1449 and rule 74 of the Rules of Civil Procedure under the Courts of Justice Act ]. At the time of submitting her request to the Police, the appellant attached a notarized copy of her Certificate of Appointment as executor of her sister’s estate, thereby satisfying the first requirement of section 54(a). Relates to the administration of the estate To satisfy the second requirement of section 54(a), the appellant must demonstrate that the request “relates to the administration of the estate”. To meet this test, the appellant must demonstrate that she is seeking access to the records for the purpose of administering the estate [Order MO-1315; Adams v. Ontario (Information and Privacy Commissioner) (1996), 136 D.L.R. (4th) 12 at 17-20 (Ont. Div. Ct.)]. Requests have been found to “relate to the administration of the estate” where the records are: relevant to determining whether the estate should receive benefits under a life insurance policy [Order MO-1315] relevant to the deceased’s financial situation and allegations of frau
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