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Document
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MO-1365
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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 request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for a numbered Occurrence Report and for a "full and complete copy of all information which you have on file with respect to [a named individual's] death. The death resulted from an incident at the deceased's workplace. The request was made by a lawyer acting on behalf of the deceased individual's wife. I will be referring to the deceased individual's wife as the appellant. The Police denied access to the Occurrence Report pursuant to sections 8(2)(a) (law enforcement report) and 14(1) (invasion of privacy) of the Act . The Police relied on the presumptions in sections 14(3)(a), (b) and (h), as well as the factor in section 14(2)(f) in support of the section 14(1) exemption claim. The Police did not address the second part of the request. During mediation, the Police agreed to conduct a further search for records responsive to the second part of the request. After identifying notebook entries made by two police officers who investigated the circumstances surrounding the death, the Police issued a revised decision, claiming the same exemptions as the basis for denying access to these records. The appellant agreed not to pursue access to photographs taken at the scene of the investigation, and also to information contained in the notebooks that relates to other investigations that have no relation to the death of the appellant's husband. Mediation was not successful, so the appeal moved to the inquiry stage. I sent a Notice of Inquiry initially to the Police and three individuals who were named in the records and whose interests might be affected by the outcome of this appeal (the affected persons). Because the appellant claimed to be acting in her capacity as executrix of her husband's estate, I added sections 54(a) and 38 of the Act as issues in the Notice. The Police provided representations in response to the Notice. The Police also stated that two of the affected persons had advised the Police that they objected to disclosure of any information relating to them. One affected person submitted representations objecting to disclosure. I then sent the Notice to the appellant, together with the non-confidential portion of the Police's representations. The appellant provided representations, which I forwarded to the Police for reply. Reply submissions were provided by the Police. RECORDS: The records at issue consist of a Sudden Death Occurrence Report (eight pages) and the relevant notebook entries made by two police officers (one and nine pages respectively). DISCUSSION: RIGHT OF ACCESS BY A PERSONAL REPRESENTATIVE I will first consider whether, under section 54(a), the appellant is entitled to exercise the access rights of her deceased husband under the Act . Section 54(a) of the Act 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 rights of her deceased husband under the Act if she can demonstrate that (a) she is the personal representative of the deceased, and (b) the rights she wishes to exercise relate to the administration of her husband's estate. If the appellant meets the requirements of this section, then she is entitled to have the same access to the personal information of her husband as he would have had. In other words, her access request would be handled under section 36(1) of the Act , and would be treated as though it had been made by the deceased husband himself (Order M-927). Personal representative In Order M-919, former Adjudicator Anita Fineberg reviewed the law with respect to section 54(a) and came to the following conclusions: The meaning of the term "personal representative" as it appears in 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 the Divisional Court in a judicial review of Order P-1027 of this office. In Adams v. 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" in the Act , when that phrase is used in connection with a deceased and the administration of a deceased's estate, it can have only one meaning, which is the meaning set out in the definition contained in the Estates Administration 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, an administrator, or an administrator with the will annexed. ... ... I am of the view that a person, in this case the appellant, would qualify as a "personal representative" under section 54(a) of the Act if he or she is "an executor, an administrator, or an administrator with the will annexed with the power and authority to administer the deceased's estate". I agree with this analysis. In order for the appellant to establish that she is her husband's personal representative for the purposes of section 54(a) of the Act , the appellant would be required to provide evidence of her authority to deal with the estate of her deceased husband. The appellant's production of a Certificate of Appointment as Estate Trustee with a Will (formerly letters probate) would be necessary. The appellant provided this Office with a copy of her husband's will, dated May 31, 1990, in which she is named as the sole executrix of the estate. This will was notarized, but the appellant confirmed that the will had not been proba
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Legislation
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Subject Index
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Published
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Nov 16, 2000
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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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