Access to Information Orders
Decision Information
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 copy of records relating to the death of the requester’s common-law spouse. The Police responded by denying access to the responsive records on the basis of the exemptions found in section 8(2)(a) (law enforcement) and section 14(1) (invasion of privacy) in conjunction with the factors in sections 14(2)(f) (highly sensitive) and 14(2)(i) (unfair damage to reputation), and the presumptions in sections 14(3)(a) (medical information), 14(3)(b) (investigation into a possible violation of law) and 14(3)(h) (racial or ethnic information) of the Act . In the decision letter, the Police also referred to the criteria under section 54(a) of the Act , which 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; The Police suggested to the requester that if she believed she met the criteria in that section, she should submit official court documentation in support of that position. Finally, in a postscript to the decision, the Police referred to the following excerpt from this office’s 1999 Annual Report which addresses issues relating to requests for information about a deceased family member: Of the various types of appeals processed by the IPC, those involving a request for information about a deceased family member are among the most sensitive. Requests of this type are submitted to institutions (most often to local police forces or the Ontario Provincial Police) by immediate family members, or their representatives, in order to obtain information surrounding the circumstances of the relative's death. Except in certain limited circumstances, institutions must deny relatives access to this information because disclosure is presumed to be an unjustified invasion of the deceased's personal privacy under the provincial and municipal Acts . The requester (now the appellant) appealed the Police’s decision. During the mediation stage of the appeal, the possible application of section 38 (discretion to refuse requester’s own information) of the Act was raised. The Police subsequently issued a revised decision letter which, in addition to the information contained in the first decision, also referred to the decision by the Police to deny access to the records under sections 38(a) and (b) of the Act . Mediation did not resolve the issues, and the appeal was transferred to the inquiry stage of the process. I sent a Notice of Inquiry to the Police, initially, and received representations in response. I then sent the Notice of Inquiry, along with a copy of the Police’s representations, to the appellant, who also provided representations. RECORDS: The records at issue consist of a sudden death report and six follow-up reports. DISCUSSION: PRELIMINARY ISSUE As a preliminary issue, the appellant identifies that she had provided this office with a notarized copy of the will of the deceased individual, appointing her as the executor of the deceased’s estate. She also attached a second copy of the notarized will to her representations. Section 54(a) deals with the exercise of a right or power of a deceased individual, and that section was referred to by the Police in their initial decision letter. The Police identified the requirements of that section, and asked the appellant to submit documentation confirming her view that the section applied. Although the application of this provision of the Act was not identified as an issue in the course of this appeal, the appellant has referred to it in her representations. I will therefore address this as a preliminary issue. Previous orders have established that, under section 54(a), a requester can exercise the deceased’s right of access under the Act if she can demonstrate that 1) she is the personal representative of the deceased, and 2) the right she wishes to exercise relates to the administration of the deceased’s estate. If a requester 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. The request for access to the personal information of the deceased will be treated as though the request came from the deceased himself [Orders M-927; MO-1315]. 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.)]. Generally, to establish that she is the deceased’s personal representative, the requester should provide written evidence of her authority to deal with the estate of the deceased, including a certificate of appointment of estate trustee [Order MO-1449]. A will alone may not be sufficient [Order MO-1365]. From the material provided by the appellant in this appeal, it appears that she is the “personal representative” of the deceased. With respect to the second requirement of section 54(a), the appellant must demonstrate that the request for information in this appeal “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 fraud or theft of the deceased’s property [Order MO-1301] required in order to defend a claim against the estate [Order M-919] required to prepare an action on behalf of the estate for damages for injuries caused to the deceased person prior to death, where the damages would be recoverable by the estate, rather than the surviving family members [Order MO-1803] Requests have been found not to “relate to the administration of the estate” where the records are: sought to support a civil action on behalf of a deceased’s estate for the wrongful death of that individual, as section 38(1) of the Trustee Act precludes recovery by the estate of damages for the death or loss of expectation of life by the deceased [Orders M-400, PO-1849] sought to support a civil claim by family members under the Family Law Act , where any damages would be paid to the family members and not to the estate [Order MO-1256] sought for personal reasons, for example, where the requester “wishes to bring some closure to . . . tragic events” [Order MO-1563] The appellant states that she requires this information for a number of reasons. One of the reasons she refers to is that, as Estate Trustee for the deceased’s estate, she require
Decision Content
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 copy of records relating to the death of the requester’s common-law spouse.
The Police responded by denying access to the responsive records on the basis of the exemptions found in section 8(2)(a) (law enforcement) and section 14(1) (invasion of privacy) in conjunction with the factors in sections 14(2)(f) (highly sensitive) and 14(2)(i) (unfair damage to reputation), and the presumptions in sections 14(3)(a) (medical information), 14(3)(b) (investigation into a possible violation of law) and 14(3)(h) (racial or ethnic information) of the Act.