During the mediation stage, the Ministry located further responsive information, consisting of additional written witness statements, a videotaped witness statement, photographs and police officers’ notes. The Ministry granted partial access to this additional information, citing the same exemptions that were applied to the earlier records and also claiming the application of section 14(1)(c) [read with section 49(a)].  With regard to the Ministry’s application of section 49(b), read with section 21(1), it also raised the application of the presumption in sections 21(3)(a) (medical history) and 21(3)(d) (employment or educational history) of the Act to deny access to some of the new information. Access to the new witness statements, the videotaped statement and the photographs was denied in their entirety. The Ministry also advised the appellant that portions of the newly identified information are not responsive to his request.

The appellant informed the mediator that he is not seeking access to the information identified by the Ministry as not responsive to his request. Accordingly, the information marked non-responsive is not at issue in the appeal.

Also during the mediation stage, section 66(a) (personal representative for an estate) of the Act was discussed and identified as a possible issue. Accordingly, in addition to exploring the application of the substantive exemptions relied on by the Ministry as set out above, I will also examine the application of section 66(a) to the circumstances of this appeal.

I first decided to seek representations from the Ministry and issued a Notice of Inquiry, which set out the facts and issues in dispute.  The Ministry submitted representations and agreed to share the non-confidential portions of them with the appellant.   In its representations, the Ministry confirmed that it is no longer relying on section 49(a), read in conjunction with section 14(1)(c), with respect to the information at issue in this appeal and section 49(a), read in conjunction with section 14(2)(a), with regard to Records 4 through 11.  Accordingly, section 49(a), read with section 14(1)(c), is no longer at issue and section 49(a), read with section 14(2)(a), is no longer at issue with regard to Records 4 through 11.

In addition, the Ministry issued a revised decision pursuant to which it disclosed further portions of Records 2, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 to the appellant.  The Ministry provided me with a copy of the revised decision letter that it sent to the appellant.  The non-disclosed portions of those records remain at issue. 

I then sought representations from the appellant and included with my Notice of Inquiry a severed copy of the Ministry’s representations. I withheld portions of the Ministry’s representations due to confidentiality concerns. The appellant submitted representations in response.  In his representations the appellant indicated that he was not interested in gaining access to the police codes.  Accordingly, the police codes, which are included in many of the records, are no longer at issue. 

RECORDS:

There are 32 records at issue.  The records and the exemptions claimed are set out in a table, attached as Appendix A to this order.

DISCUSSION:

PERSONAL REPRESENTATIVE FOR THE ESTATE

Since the request in this case was made by members of the deceased’s immediate family, the application of section 66(a) should be examined.

Section 66(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, a requester can exercise the deceased’s right of access under the Act if he/she can demonstrate that

• he/she is the personal representative of the deceased, and

• the right he/she wishes to exercise relates to the administration of the deceased’s estate.

If the requester meets the requirements of this section, then he/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 him or herself [Orders M-927; MO-1315].

The appellant submits that the deceased’s estranged wife and a court appointed representative were named as co-administrators of the deceased’s estate.  The appellant feels that in light of this arrangement, the deceased is without a personal representative.  As a result, the appellant is of the view that it was incumbent upon him and those that he represents to inquire into the circumstances surrounding the deceased’s death.

While I acknowledge the appellant’s motivation for pursuing this request, the issue for me to determine is whether the appellant is the deceased’s personal representative. 

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.)]. 

Based on the appellant’s representations, it appears that the deceased’s former spouse and a court appointed representative may have been named as the deceased’s co-administrators.  While I do not have documentary evidence in support of this claim, it is clear that the appellant is not the deceased’s personal representative for the purposes of the Act.  I find that section 66(a) does not apply to this case and, accordingly, the appellant is not entitled to stand in the deceased’s shoes under the Act.

PERSONAL INFORMATION

General principles

In order to determine which sections of the Act may apply, it is necessary to decide whether the records contain “personal information” and, if so, to whom it relates.  That term is defined in section 2(1) as follows:

“personal information” means recorded information about an identifiable individual, including,

(a)        information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

(b)        information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(c)        any identifying number, symbol or other particular assigned to the individual,

(d)       the address, telephone number, fingerprints or blood type of the individual,

(e)        the personal opinions or views of the individual except if they relate to another individual,

…

(g)        the views or opinions of another individual about the individual, and

(h)        the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;

The list of examples of personal information under section 2(1) is not exhaustive.  Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information [Order 11].

To qualify as personal information, the information must be about the individual in a personal capacity.  As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be “about” the individual [Orders P-257, P-427, P-1412, P-1621, R-980015, MO-1550-F, PO-2225].

Even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual [Orders P-1409, R-980015, PO-2225].

To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed [Order PO-1880, upheld on judicial review in Ontario (Attorney General) v. Pascoe, [2002] O.J. No. 4300 (C.A.)].

Analysis and findings

The parties’ representations on this issue are not helpful.  Therefore, I am left to examine the contents of the records to determine the extent to which they contain personal information and, if so, to whom it relates.

Having conducted a thorough review of the records, I find that all of them contain personal information.  These records can be categorized as follows:

• records that contain the personal information of individuals other than the appellant (Records 3, 45, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29 and 30) (the Category 1 Records)

• records that contain both the appellant’s personal information and the personal information of other individuals (Records 1, 2, 6, 7, 12, 24, 31 and 32) (the Category 2 Records)

Of these records, none contain the appellant’s personal information exclusively and most, if not all, contain the deceased’s personal information.

With regard to the Category 1 Records, the personal information includes their names, their personal opinions or views, other personal information about them and the views or opinions of other individuals about the individual.  In some cases, the personal information also includes their addresses and telephone numbers.

With respect to the Category 2 Records, the personal information includes the appellant’s name, sex, date of birth and address, and other personal information relating to the appellant where it is connected to his name, as well as the views or opinions of other individuals about the appellant.  These records also include the personal information of individuals other than the appellant including their names, sex, dates of birth and addresses along with their personal opinions or views and other personal information relating to them.

Having found that the Category 1 Records contain the personal information of individuals other than the appellant, I will consider the application of sections 21(1), 14(1)(l) and 14(2)(a) to these records.

Conversely, having found that the Category 2 Records contain the personal information of the appellant and other individuals, I will consider the application of section 49(b)/21 and/or section 49(a), read with section 14(2)(a) or 14(1)(l), to these records.

DISCRETION TO REFUSE REQUESTER’S OWN INFORMATION/INVASION OF PRIVACY

Introduction

Section 47(1) of the Act gives individuals a general right of access to their own personal information held by an institution.  Section 49 provides a number of exceptions to this general right of access.

Section 49(b) of the Act provides:

A head may refuse to disclose to the individual to whom the information relates personal information,

if the disclosure would constitute an unjustified invasion of another individual's personal privacy;

Under section 49(b) of the Act, where a record contains the personal information of both the requester and other individuals and the institution determines that the disclosure of the information would constitute an unjustified invasion of another individual’s personal privacy, the institution has the discretion to deny the requester access to that information.

In this case I have determined that the Category 2 Records contain the personal information of both the appellant and other individuals.  Therefore, I will consider whether the disclosure of this personal information would be an unjustified invasion of the personal privacy of other individuals and is exempt from disclosure under section 49(b).   

Section 49(b) of the Act introduces a balancing principle.  The institution must look at the information and weigh the requester’s right of access to his or her own personal information against another individual’s right to the protection of their privacy.  If the institution determines that release of the information would constitute an unjustified invasion of the other individual’s personal privacy, then section 49(b) gives the institution the discretion to deny access to the personal information of the requester.  On appeal, I must be satisfied that disclosure would constitute an unjustified invasion of another individual’s personal privacy (see Order M-1146).

Where, however, a record only contains the personal information of other individuals (as is the case with the Category 1 Records), and the release of this information would constitute an unjustified invasion of the personal privacy of those individuals, section 21(1) of the Act prohibits an institution from releasing this information, unless one of the exemptions set out in that section applies.  Accordingly, I will also consider whether the disclosure of the personal information in the Category 1 Records would be an unjustified invasion of personal privacy under section 21(1).

In both these situations (where the records contain the personal information of the appellant and of others, and where the records contain the personal information of other individuals only), sections 21(2), (3) and (4) 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 head to consider in making a determination as to 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(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy.  Section 21(4) refers to certain types of information whose disclosure does not constitute an unjustified invasion of personal privacy. 

With respect to section 21(3), 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 section 21(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].  In other words, once section 21(3) is found to apply, the factors in section 21(2) cannot be resorted to argue in favour of disclosure.

Unjustified invasion of another individual’s personal information

Introduction

The Ministry submits that the presumption in section 21(3)(b) applies to both the Category 1 Records and the Category 2 Records.

Section 21(3)(b) states:

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

Parties’ representations

The Ministry submits that the non-disclosed personal information in the records at issue consists of highly sensitive personal information that was compiled and is identifiable as part of a law enforcement investigation undertaken by the Ontario Provincial Police (OPP) and the Office of the Chief Coroner (the Coroner) into a possible violation of law arising out of the circumstances surrounding the deceased’s death.  The Ministry states during the course of the investigation, the OPP interviewed a number of identifiable individuals and that their personal information is contained in the records at issue.

The Ministry submits that in reviewing the records, it was mindful that certain information relating to the deceased’s death was likely to be within the appellant’s knowledge.  Giving this careful consideration, the Ministry indicates that it disclosed as much information as possible in the circumstances.

While the appellant does not directly address the application of the section 21(3)(b) presumption, he states:

For the most part the [witness] statements are a record of observations made about an occurrence that tragically affected our lives, and are not a matter private to the witnesses themselves.  They are records of fact.

Review of those statements would also allow a certain amount of scrutiny to be placed on the practices, procedures, and conclusions, of the authorities involved.  It is vitally important to us that we can be satisfied a complete and thorough investigation was conducted.

Analysis and findings

On my review of the records and the Ministry’s representations, I am satisfied that the records at issue were compiled as part of an OPP investigation into a possible violation of law under the Criminal Code , regarding the deceased’s untimely death as a result of a boating accident.  The police investigation alone triggers the application of the section 21(3)(b) presumption.  While I have no evidence that charges were laid as a result of this incident, the fact that criminal proceedings may not have been commenced does not have a bearing on the issue.  Section 21(3)(b) only requires that there be an investigation into a possible violation of law (Order PO-1849) and I am satisfied that one was completed in this case. 

I acknowledge the appellant’s interest in gaining access to the information at issue in an effort to satisfy himself and his family members that a proper police investigation was completed.  However, in my view, the appellant is also motivated, in part, by an interest in pursuing his own investigation.  This issue has been examined extensively by this office (see, in particular, my previous decisions in Order PO-2167 and MO-1715).  On this issue, the following passage from my Order PO-2167 is instructive:

[I]n my view, the drafters of the Act did not intend to justify the rebutting of the presumption against disclosure under section 21(3)(b) in circumstances where a private individual or organization wished to pursue their own investigation.  The phrase “continue the investigation” refers to the investigation in which the information at issue was compiled.  This view has been followed in previous orders of this office (Orders MO-1356, M-718 and M-249).

In Order MO-1356, former Adjudicator Laurel Cropley considered the meaning of the phrase “continue the investigation” in section 21(3)(b).  She reached the following conclusion:

There is nothing in the appellant’s submissions that would lead me to conclude that the personal information is required to continue the investigation for which the personal information was compiled.  Rather, the appellant seeks the information for his own personal purposes in challenging the motivations and actions of the Police and others in instigating and conducting the investigations in the first place.

I agree with former Adjudicator Cropley’s conclusion and find that it applies here.  In this case, the investigation was conducted by the OPP and the information contained in the record was gathered as a result of that investigation.  It is clear on the evidence that their investigation has been completed.  The fact that the appellant now wishes to acquire that information to complete his own investigation is not relevant to a determination of section 21(3)(b).  Therefore, I find no justification for rebutting the presumption in section 21(3)(b).

In this case, the OPP conducted an investigation and the information contained in the records was gathered as a result of that investigation.  It is clear on the evidence that the OPP completed its investigation.  The fact that the appellant wishes to acquire the severed information to complete his own investigation is not relevant to a determination of section 21(3)(b).  I find no justification for rebutting the presumption in section 21(3)(b).

With regard to the Category 1 Records, the Ministry has claimed the application of the mandatory exemption in section 21(1).   Having found that the section 21(3)(b) presumption applies to these records, I find that the disclosure of them is deemed to constitute an unjustified invasion of the personal privacy of the individuals to whom that information relates.  Having found that the section 21(3)(b) presumption applies, I am precluded from considering any of the factors weighing for or against disclosure under section 21(2), because of the John Doe decision.  Therefore, the Category 1 Records qualify for exemption under section 21(1) of the Act.

With respect to the Category 2 Records, the Ministry has claimed the section 49(b) discretionary exemption.  Again having found that section 21(3)(b) applies, I am precluded from considering any of the factors weighing for or against disclosure under section 21(2).  Therefore, to the extent that these records contain the personal information of individuals other than the appellant, disclosure of this personal information must also be presumed to constitute an unjustified invasion of the personal privacy of those individuals.  As a result, the non-disclosed portions of the Category 2 Records are exempt under the section 49(b) exemption, subject to my consideration of the severance and exercise of discretion issues, below.

I find that none of the circumstances outlined in section 21(4) would operate to rebut the application of the presumption under section 21(3)(b) and I am satisfied that there is no compelling public interest in the disclosure of the exempt information under section 23.

Having found the information at issue exempt under section 21(1) or section 49(b), it is not necessary for me to consider the application of section 49(a) and the law enforcement exemptions in sections 14(1)(l) and 14(2)(a).

SEVERANCE

Section 10(2) of the Act obliges institutions to disclose as much of any responsive record as can reasonably be severed without disclosing material that is exempt.

The key question raised by section 10(2) is one of reasonableness.  Where a record contains exempt information, section 10(2) requires a head to disclose as much of the record as can reasonably be severed without disclosing the exempt information. 

The Ministry states that it is aware of its obligation to disclose any non-exempt parts of the responsive records and submits that it has provided the appellant with access to as much of the records as possible in the circumstances.

The appellant’s representations do not address the severance issue.

On my review of the records, I am satisfied that for the most part, the Ministry has disclosed information that does not qualify for exemption.  With regard to the Category 2 Records generally, there are a few instances where the Ministry has severed snippets of the appellant’s personal information where it appears together with the personal information of other individuals.  In addition, with regard to the videotaped witness statement, the Ministry has denied access to it, in its entirety, despite the fact that the record contains the personal information of both the appellant and other individuals.

In my view, no useful purpose is served by the severance of records where exempt information is so intertwined with non-exempt information that what would be disclosed is substantially unintelligible.  A head will not be required to sever the record and disclose portions where to do so would reveal only “disconnected snippets”, or “worthless”, “meaningless” or “misleading” information.  Further, severance will not be considered “reasonable” where an individual could ascertain the content of the withheld information from the information disclosed [Order PO-1663, Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner) (1997), 102 O.A.C. 71 (Div. Ct.)]. 

With these principles in mind, I am satisfied that the limited personal information about the appellant in the Category 2 Records that has not been disclosed, for example, in a few instances his name and relationship with the deceased, would, if disclosed, reveal either disconnected snippets or worthless or meaningless information.  With regard to the videotaped statement specifically, the appellant’s personal information is so intertwined with that of other individuals that to sever it would be impractical (see Order PO-2524).

Accordingly, in the circumstances, I am satisfied that the Ministry has properly completed the severing exercise.

EXERCISE OF DISCRETION

The section 49(b) exemption is discretionary, and permits the Ministry to disclose information, despite the fact that they could withhold it.  An institution must exercise its discretion.  On appeal, the Commissioner may determine whether the institution failed to do so.

In addition, the Commissioner may find that the institution erred in exercising its discretion where, for example,

• it does so in bad faith or for an improper purpose

• it takes into account irrelevant considerations

• it fails to take into account relevant considerations

In such a case this office may send the matter back to the institution for an exercise of discretion based on proper considerations (Order MO-1573).  This office may not, however, substitute its own discretion for that of the institution [section 43(2)].

Relevant considerations may include those listed below.  However, not all those listed will necessarily be relevant, and additional unlisted considerations may be relevant (Orders P-344, MO-1573):

• the purposes of the Act, including the principles that

○    information should be available to the public

○    individuals should have a right of access to their own personal information

○    exemptions from the right of access should be limited and specific

○    the privacy of individuals should be protected

• the wording of the exemption and the interests it seeks to protect

• whether the requester is seeking his or her own personal information

• whether the requester has a sympathetic or compelling need to receive the information

• whether the requester is an individual or an organization

• the relationship between the requester and any affected persons

• whether disclosure will increase public confidence in the operation of the institution

• the nature of the information and the extent to which it is significant and/or sensitive to the institution, the requester or any affected person
• the age of the information

• the historic practice of the institution with respect to similar information

The Ministry has provided detailed representations regarding its exercise of discretion.  The Ministry states that it carefully considered the appellant’s rights of access and has made an effort to provide him with the “maximum amount of information available in the circumstances.”  In exercising its discretion to disclose some information and withhold other information the Ministry states that it considered a number of factors, including

• the age of the records

• the appellant’s relationship to the deceased

• the law enforcement purpose of the records

• the sensitive nature of the information in the records

• the extent to which disclosure would increase public confidence in the delivery of public services

• the appellant’s right of access weighed against the privacy rights of other individuals

• the extent to which the appellant and his family believe they have a sympathetic or compelling need to obtain access to additional information concerning the OPP investigation

In response, the appellant submits that the Ministry has overstated the “sensitivity of the personal information involved” as well as the “personal distress likely to be experienced by those individuals” whose information is contained in the records.  The appellant also states that the Ministry has “understated the value of public scrutiny […] [p]articularly by family members wishing to ensure that a complete and thorough investigation has been conducted.”  The appellant states that he initiated his request for information, in part, on the recommendation of the OPP officers involved in the investigation.  Therefore, he questions the impact that disclosure would have on policing.  The appellant concludes that by withholding the information at issue, the Ministry has critically delayed any legal action that he and his family may be contemplating.

I acknowledge the appellant’s concerns regarding the Ministry’s exercise of discretion and his deep interest in acquiring the information at issue.  However, the issue for me to decide is whether the Ministry has properly exercised its discretion in denying access to the withheld information. 

On my review of all of the circumstances surrounding this appeal and the Ministry’s representations, I am satisfied that the Ministry has been generous to the appellant in its exercise of discretion, disclosing considerable information, in some cases even the personal information of the deceased, while remaining sensitive to the privacy interests of the other individuals involved in the OPP investigation. While I appreciate that the appellant seeks this information to commence a legal action, a denial of access under this Act does not prevent him from preserving his legal rights or from pursuing this information through some other access mechanism. 

In conclusion, I am satisfied that the Ministry has taken into account relevant considerations, and has not taken into account any irrelevant factors, in deciding not to disclose the information found to be exempt under section 49(b).   

ORDER:

I uphold the Ministry’s decision to withhold the non-disclosed portions of the records at issue.

Original signed By:                                                                             May 31, 2007                         

Bernard Morrow