Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Peel 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 specific report prepared as a result of an incident that occurred on June 17, 2003. The Police located the requested record and denied access to portions of it, claiming the application of the invasion of privacy exemptions in sections 14(1) and 38(b) of the Act . In their decision letter to the requester, the Police indicated that although the requester represents the family of the deceased person who is the subject of the record, he is not entitled to access to the record unless he satisfies the requirements of section 54(a) of the Act . The requester, now the appellant, appealed this decision. The requester is counsel to the surviving members of the deceased person's family in various actions. For ease of reference, I will refer to the deceased's wife, the requester's client, as the appellant. During the mediation stage of the appeal, the appellant provided the Police and this office with a copy of a Certificate of Appointment of Estate Trustee Without a Will appointing the appellant's client as the Estate Trustee of the deceased person. As further mediation was not possible, the matter was moved to the adjudication stage of the appeals process. I initially sought and received the representations of the Police, which were shared, in their entirety, with the appellant, along with a Notice of Inquiry setting out the facts and issues in the appeal. The appellant also provided representations. RECORDS: The sole record at issue consists of the undisclosed portions of a police occurrence report into the death of the appellant's husband. DISCUSSION: RIGHT OF ACCESS BY A PERSONAL REPRESENTATIVE Introduction I will first consider whether, under section 54(a) of the Act , the appellant, who was the deceased's spouse, is entitled to exercise the rights of the deceased person under the Act . 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 rights of the deceased 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 the deceased'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 the deceased as the deceased would have had; her request for access to the personal information of the deceased will be treated as though the request came from the deceased himself under section 36(1) of the Act (Orders M-927, MO-1315 and MO-1538). Personal Representative In Order M-919, former Inquiry Officer 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. Based on the court's analysis set out above, 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 Police have accepted that the deceased's wife is a personal representative of the deceased. Based on the court order issued August 26, 2003, appointing the deceased's wife the Estate Trustee of the deceased's estate, I am also satisfied that she is a "personal representative" within the meaning of section 54(a) of the Act . Relates to the Administration of the Individual's Estate In Order M-1075, Assistant Commissioner Tom Mitchinson reviewed the scope of the access rights of a personal representative under section 54(a): The rights of a personal representative under section 54(a) are narrower than the rights of the deceased person. That is, the deceased retains his or her right to personal privacy except insofar as the administration of his or her estate is concerned. The personal privacy rights of deceased individuals are expressly recognized in section 2(2) of the Act , where "personal information" is defined to specifically include that of individuals who have been dead for less than thirty years. In order to give effect to these rights, I believe that the phrase "relates to the administration of the individual's estate" in section 54(a) should be interpreted narrowly to include only records which the personal representative requires in order to wind up the estate. In that order, Assistant Commissioner Mitchinson accepted the argument of a personal representative that access to certain police records was required in order to determine whether the major beneficiary of the estate was disentitled from benefiting under the will by contributing to the death of the testator. It was found that access to the records was required in order for the personal representative to make an informed decision about matters relating to the beneficiary's entitlement to assets of the estate, and met the second requirement under section 54(a). Other orders have applied section 54(a) in circumstances where access to the records was required in order to defend a claim being made against an estate (Order M-919), to exert a right to financial entitlements being denied to the estate or said to be due to the estate (Orders M-934 and MO-1315) or to investigate allegations of fraud which might affect the size of the estate (MO-1301). Representations of the parties In the present appeal, the appellant maintains that she requires access to the personal information contained in the record in order to pursue claims on behalf of herself and her children before the Workplace Safety and Insurance Board (WSIB), the Workplace Safety and Insurance Appeals Tribunal (WSIAT) and the Criminal Injuries Compensation Board (the CICB).
Decision Content
NATURE OF THE APPEAL:
The Peel 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 specific report prepared as a result of an incident that occurred on June 17, 2003. The Police located the requested record and denied access to portions of it, claiming the application of the invasion of privacy exemptions in sections 14(1) and 38(b) of the Act. In their decision letter to the requester, the Police indicated that although the requester represents the family of the deceased person who is the subject of the record, he is not entitled to access to the record unless he satisfies the requirements of section 54(a) of the Act.
The requester, now the appellant, appealed this decision. The requester is counsel to the surviving members of the deceased person’s family in various actions. For ease of reference, I will refer to the deceased’s wife, the requester’s client, as the appellant.
During the mediation stage of the appeal, the appellant provided the Police and this office with a copy of a Certificate of Appointment of Estate Trustee Without a Will appointing the appellant’s client as the Estate Trustee of the deceased person. As further mediation was not possible, the matter was moved to the adjudication stage of the appeals process. I initially sought and received the representations of the Police, which were shared, in their entirety, with the appellant, along with a Notice of Inquiry setting out the facts and issues in the appeal. The appellant also provided representations.
RECORDS:
The sole record at issue consists of the undisclosed portions of a police occurrence report into the death of the appellant’s husband.
DISCUSSION:
RIGHT OF ACCESS BY A PERSONAL REPRESENTATIVE
Introduction
I will first consider whether, under section 54(a) of the Act, the appellant, who was the deceased’s spouse, is entitled to exercise the rights of the deceased person under the Act.