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Document
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MO-1375
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Institution/HIC
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Niagara Regional Police Service
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Summary
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NATURE OF THE APPEAL: 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 a copy of the police report prepared following an investigation into the sudden death of a woman. The requester is an Investigator retained by the Insurer of the deceased woman's life. Attached to the request was an authorization executed by the deceased's foster mother authorizing the Police to disclose any information relating to herself to the Investigator. The Police located the responsive records and denied access to them, in their entirety, claiming the application of the invasion of privacy exemption contained in section 14(1) of the Act , with reference to the presumption against disclosure in section 14(3)(b) (records compiled as part of an investigation into a possible violation of law). The Police also advised the requester that access to the requested information would not be granted unless he was able to demonstrate that the request fell within the ambit of section 54(a) of the Act which allows for a requester to have access to personal information relating to a deceased individual only if the requester is the "personal representative of the deceased" and the exercise of the right of access "relates to the administration of the individual's estate." The requester, now the appellant, appealed the decision of the Police to deny access to the records. During the mediation stage of the appeal, the Police obtained consent to the partial disclosure of a statement made by a witness. In accordance with that consent and pursuant to section 14(1)(a), a portion of this individual's statement to the Police was disclosed to the appellant. Initially, I decided to seek the representations of the appellant with respect to the application of sections 14(1) and 54(a) to the records. In addition, as some of the information contained in the records appears to relate to the deceased's sister, who also provided the appellant with an authorization allowing the disclosure of her personal information to him, I asked the appellant to address the possible application of section 38(b) of the Act to the records. I received the representations of the appellant, which were then shared, in their entirety, with the Police. As noted above, the appellant also provided an authorization from the deceased's sister which purports to grant the appellant the right of access to any personal information of the deceased which may be contained in the records. I will address the impact of that authorization below. In response to the Notice of Inquiry, the Police also provided me with representations. DISCUSSION: PERSONAL INFORMATION Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual. Having reviewed the records, I find that they all contain information which is primarily about the deceased and the circumstances surrounding her death. Section 2(2) provides that personal information does not include information about an individual who has been dead for more than thirty years. Because the deceased has been dead for less than 30 years, the information in the records which is about her continues to qualify as her personal information. The records also contain the personal information of a number of other identifiable individuals, such as witnesses interviewed by the Police, and including the deceased's sister and foster mother. The records do not contain any personal information relating to the appellant. RIGHT OF ACCESS BY A PERSONAL REPRESENTATIVE 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 section 54(a), the appellant would be able to stand in the place of the deceased and exercise her right to request access to her personal information if he is able to: demonstrate that he is the deceased's "personal representative"; and demonstrate that his request for access "relates to the administration of the deceased's estate". The term "personal representative" used in section 54(a) is not defined in the Act . However, section 54(a) relates to the administration of an individual's estate and the meaning of the term must be derived from this context. In Order M-919, former Adjudicator Anita Fineberg reviewed the law with respect to section 54(a), and came to the following conclusion: ... 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". The rights of a personal representative under section 54(a) are narrower than the rights of the deceased person. That is, the deceased person retains the right to personal privacy except insofar as the administration of his or her estate is concerned. In Order M-1075, it was established that in order to give effect to the rights established by section 54(a), the phrase "relates to the administration of the individual's estate" should be interpreted narrowly to include only records which the personal representative requires in order to wind up the estate. Therefore, the appellant in this case must establish not only that he or the deceased's sister is the deceased's personal representative, for the purposes of section 54(a), but also that he needs access to the records for the purposes of exercising his or the deceased's sister's duties as a personal representative. To do this, the appellant must first provide evidence of his or the sister's authority to deal with the estate of the deceased. As set out in the Notice of Inquiry, th
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Legislation
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Subject Index
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Published
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Dec 07, 2000
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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