The requester, now the appellant, appealed the decisions to deny access.

During the mediation stage of the appeal, the appellant narrowed the scope of his requests and the appeals to include only the following information contained on the death registration forms: 

. . . date of birth, place of birth, date of death, place of death, usual or last known residence address, marital status and parental information including names and places of birth.

In discussions with the Ministry, the Mediator reviewed earlier decisions of the Commissioner, which had addressed the application of section 21(1) to the same type of records.  The Ministry agreed to disclose the year of birth, date of death, town and municipality of death, marital status, gender, age at death and the name and address of the funeral home and funeral director who completed the Statement of Death.  The Ministry also agreed to disclose the names of parents, where available, for those named deceased who were born in 1910 or earlier.  In the circumstances, there are only two appeals in which the deceased were born in 1910 or earlier (Appeals PA-020250-1 and PA-020260-1) and in both of these, the names of the parents are not contained on the records as they are not known. 

Further mediation was not possible and the appeals were moved to the adjudication stage of the appeal process.  I decided to seek representations from the Ministry, initially.  I received its submissions in response to the Notice of Inquiry, and shared the non-confidential portions of them with the appellant, along with a copy of the Notice of Inquiry.  The appellant also provided me with representations, which I shared, in their entirety, with the Ministry.  The appellant indicates that he is further limiting the scope of part of his appeal to include only the last known addresses for the deceased individuals that are residential, as opposed to institutional, addresses.  I also sought and received representations by way of reply from the Ministry.

RECORDS:

The information that remains at issue in each appeal consists of the day and month of birth, place of birth and the usual or last known residential address of each of the deceased persons, along with their parents’ names and birthplaces, where available, that are contained on the Statement of Death forms.

DISCUSSION:

PERSONAL INFORMATION

There is no dispute that the information sought by the appellant qualifies as the personal information of the deceased persons within the meaning of section 2(1) of the Act.  As these individuals died in 2000, the exception in section 2(2) of the Act, which removes information about persons who have been dead for more than 30 years from the definition of personal information, cannot apply to information relating to them.

Six of the appeals concern records that also contain information about the deceased person’s parents.  The Ministry argues that information relating to the parents also qualifies as the personal information of the deceased persons who are the subject of these requests and the subsequent appeals.  In my view, the information relating to the parents qualifies as their personal information only.  The records include, in some cases, the name and birthplace of the parent or parents of the deceased person.  This is information about the parents only.  I do not agree with the position taken by the Ministry that this information also qualifies as the personal information of the deceased persons and find that it relates solely to the parents.

I will now determine whether the information relating to the parents falls within the ambit of the exception in section 2(2) to the definition of “personal information” because it relates to individuals who have been dead for more than 30 years.  In Order PO-1886, Assistant Commissioner Mitchinson reviewed earlier decisions of this office in which certain assumptions about life expectancy were made to assist in establishing dates of death for individuals where this fact could not be determined from the records.  He found that:

It is clear from the comments and findings of Adjudicator Jiwan [in Order P-1232] that, absent proof establishing the dates of death, a determination of the probable dates can only be made on the basis of reasonably applied assumptions.  Given the context in which this finding must be made, and the fact that the Act specifically provides for the retention of privacy rights for 30 years following death, I agree that these assumptions should be conservative.  However, it is also relevant to point out that this Office in past orders has determined that privacy rights do diminish after death (see, for example, Orders M-50, PO-1717 and PO-1736).  In my view, the longer a person has been dead, the more their privacy rights diminish, culminating in an elimination of these rights after 30 years.

If the two individuals identified by the appellant were alive today, they would be 97 and 93 years of age.  Clearly, the parents of these individuals have all been dead for a considerable period of time.  The question is whether or not it is reasonable to assume that they have been dead for the full 30 years required in order for section 2(2) to apply.

In estimating the dates of death, the Ministry has used more conservative assumptions than those advocated by the appellant.  The Ministry also points out that the appellant has inaccurately interpreted the documentation provided by him in support of his assumptions.

I agree with the Ministry that the Statistics Canada print-out supplied by the appellant does not support his position that the life expectancy of individuals born in the time period of the parents in these cases was approximately 71 years.  The 71-year figure referred to by the appellant appears to refer to the life expectancy at birth of people born between 1960 and 1962.  That being said, the theory put forward by the appellant is sound.  Although in the closing years of the 20^th century it was not unusual, as Adjudicator Jiwan pointed out in Order P-1232, for someone still alive to live to the age of 95, the same cannot be said of people born in earlier times.  The fact that life expectancy has increased over time would appear to me to be a commonly accepted fact, and applying current life expectancy assumptions to people born in the 1800s would, in my view, not be reasonable.  For this reason, I do not accept the so-called “125 year rule” applied by the Ministry in these appeals.

In the case of the parents in appeal #1, if it is conservatively assumed that they were both 20 at the time of their daughter’s birth, that would place their year of birth as 1884.  In order for these parents to have been dead for at least 30 years, they would have to have died earlier than 1971 or, in other words, at an age not older than 87.  Applying the same assumptions to the parents in appeal #2, they would have been born in 1888 and, if they lived until 1971, would have died at the age of 83.

According to Statistics Canada, the life expectancy of individuals who had attained the age of 20 in the first decade of the 20^th century was 68.  In my view, in circumstances where the actual dates of death are not known, as is the case in these appeals, the figure available from Statistics Canada is a reasonable one to apply in making assumptions regarding the life expectancy of the parents.  Even if five years are added to this figure bringing the life expectancy to 73, in order to ensure that the assumptions are sufficiently conservative, the parents in appeal #1 would have died in 1957 and the parents in appeal #2 in 1961.

In the circumstances of these appeals, I find that it is reasonable to conclude that the parents of the individuals identified by the appellant have all been dead for at least 30 years.  Accordingly, pursuant to section 2(2), their names and places of birth do not qualify as their personal information, and cannot qualify for exemption under section 21(1) of the Act.

I adopt the approach taken by the Assistant Commissioner for the purposes of the present appeals, six of which contain information relating to the deceased person’s parents.  As was the case in Order PO-1886, I will assume a life expectancy for the parents of the deceased persons of 73 years and, also assume that the parents were 20 years of age at the time the deceased persons were born. 

In the case of Appeal Number PA-020249-1, the deceased person was born in 1926.  Completing the calculation set out in Order PO-1886, I find that the parents can be assumed to have died in 1979, less than 30 years ago, and that section 2(2) cannot apply to information relating to them.  

In Appeal Number PA-020252-2, the deceased person was born in 1921.  Accordingly, this individual’s parents are assumed to have died in 1974, less than 30 years ago, and the exception in section 2(2) cannot apply to information about them.

In Appeal Number PA-020254-1, the deceased was born in 1927 and the parents are assumed to have died in 1980, which is less than 30 years ago.  Again, the exception in section 2(2) cannot apply to the information of the parents in this case.

In Appeal Number PA-020255-1, the deceased was born in 1912 and the parents can be assumed to have died in 1965.  Therefore, the personal information relating to the parents, the father’s last name and birthplace and the mother’s birthplace, falls within the ambit of section 2(2) as it relates to a person who has been dead for at least 30 years.  As a result of the operation of section 2(2), this information does not qualify as “personal information” and is not subject to the exemption in section 21(1).

Similarly, in Appeal Number PA-020256-1, the deceased was born in 1911.  The parents, therefore, can be assumed to have died in 1964.  As more than 30 years have elapsed since that date, the personal information of the parents which is contained in this record, their names and birthplaces, does not qualify as personal information and is not, therefore, exempt under section 21(1).

Insofar as Appeal Number PA-020261-1 is concerned, the deceased was born in 1947 and this individual’s parents are assumed to have died relatively recently, in 2000.  Personal information relating to the parents of this individual would not, therefore, be subject to section 2(2) until the year 2030.

INVASION OF PRIVACY

The invasion of privacy exemption in section 21(1) applies only to information which qualifies as personal information within the definition of section 2(1).  Where a requester seeks personal information of another individual, section 21(1) of the Act prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) through (f) of section 21(1) applies.  The only exception having any application in the present circumstances is section 21(1)(f), which reads:

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

•         if the disclosure does not constitute an unjustified invasion of personal privacy.

Sections 21(2) and (3) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of the personal privacy of the individual to whom the information relates.  Section 21(2) provides some criteria for the institution to consider in making this determination.  Section 21(3) lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy.  Section 21(4) refers to certain types of information the disclosure of which does not constitute an unjustified invasion of personal privacy.  The Divisional Court has stated that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in 21(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].

A section 21(3) presumption can be overcome if the personal information at issue falls under section 21(4) of the Act or if a finding is made under section 23 of the Act that a compelling public interest exists in the disclosure of the record in which the personal information is contained which clearly outweighs the purpose of the section 21 exemption.  [Orders PO-2017, PO-2033-I and PO-2056-I]

If none of the presumptions in section 21(3) applies, the institution must consider the application of the factors listed in section 21(2), as well as all other considerations that are relevant in the circumstances of the case.

The appellant argues that the considerations listed in sections 21(2)(a) and (c), which favour the disclosure of personal information, as well as two unlisted factors described as “benefit to unknown heirs” and “diminished privacy rights after death”, apply in the present appeals. 

The Ministry relies on the presumptions in sections 21(3)(a), (c) and (h) of the Act.  In addition, the Ministry argues the application of an unlisted factor under section 21(2) which it describes as “the prevention of identity theft”, and the listed considerations under sections 21(2)(f), (h) and (i) of the Act.  These sections state:

(2)               A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

(a)        the disclosure is desirable for the purpose of subjecting the activities of the Government of Ontario and its agencies to public scrutiny;

(c)        access to the personal information will promote informed choice in the purchase of goods and services;

            (f)        the personal information is highly sensitive;

(h)        the personal information has been supplied by the individual to whom the information relates in confidence; and

(i)         the disclosure may unfairly damage the reputation of any person referred to in the record.

(3)        A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,

(a)        relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

(c)        relates to eligibility for social service or welfare benefits or to the determination of benefit levels;

(h)        indicates the individual's racial or ethnic origin, sexual orientation or religious or political beliefs or associations.

Considering the particular circumstances of this appeal and the contents of the specific records being requested by the appellant, I find that the potential for disclosure of certain information contained on the Statement of Death form to assist individuals to prove their entitlement to assets of estates which they may not have been able to otherwise is a relevant factor.  The weight of this factor varies according to the extent to which a particular item of personal information assists in the identification of potential heirs.  In the circumstances of this appeal, the names of the deceased’s parents and husband, as well as the date of death, place of death, age, date of birth, martial status and occupation of the deceased could reasonably be expected to assist in the identification of potential heirs.  Applying similar reasoning to that followed by Senior Adjudicator Goodis in Order PO-1736 and by me in Order PO-1923, I find that this unlisted factor applies to a high degree as it relates to the date of death; to a moderate to high degree to the place of death, date of birth, age, marital status and occupation of the deceased, and to the names of the deceased’s husband and parents; and not at all to the deceased’s social insurance number or any personal information of the informant.

Consistent with the past orders identified by the PGT, I have determined in this case that, because the deceased has not been dead for 30 years, the information about her and others contained in the records falls within the scope of section 2(2).  I also accept that the unlisted factor “diminished privacy interest after death” should be applied with care, given the wording of this section.  Each case must be carefully considered on its particular facts and circumstances.

In the present case, the deceased died in 1999, which means that she has only been dead for approximately two years.  This is similar to the situation faced by Senior Adjudicator David Goodis in Order PO-1736, where he was dealing with individuals who were dead for a relatively short period of time.  Orders PO-1717 and PO-1923, on the other hand, dealt with situations where the deceased had been dead for more than 20 years.  As far as the deceased is concerned, in my view, the unlisted factor of “diminished privacy interest after death” is relevant in this appeal, as it was in Order PO-1736.  However, unlike Orders PO-1717 and PO-1923, where this factor reduced the privacy interests of the deceased significantly, in this case, I find that the privacy interests of the deceased, like those in Order PO-1736, are only moderately reduced, and not eliminated.  Given that the husband and the parents of the deceased have likely been dead for longer, I find that their privacy interests have been reduced to a more significant degree but, in the absence of any evidence to establish that any of them has been dead for 30 years, these interests have also not been eliminated.

ORDER:

1.         I uphold the Ministry’s decision to deny access to the place of birth of the deceased persons and their parents which are contained in the Statement of Death forms that represent the records at issue in these appeals.

2.         I order the Ministry to disclose to the appellant the dates of birth, last known or usual residential address and parents’ names which are contained on the Statement of Death forms by providing him with copies by December 1, 2003 but not before November 26, 2003.

3.                  In order to verify compliance with Order Provision 2, I reserve the right to require the Ministry to provide me with copies of the records which are disclosed to the appellant.

Original signed by:                                                                                   October 24, 2003              

Donald Hale