ORDER PO-3732

Appeal PA15-136

Ministry of Community Safety and Correctional Services

May 16, 2017

Summary: The appellant seeks access to information relating to his brother’s death. The appellant referred to section 21(4)(d) (compassionate grounds) in his request. The ministry granted partial access to the responsive records, denying access to portions of them pursuant to the discretionary personal privacy exemption in section 49(b) of the Act. The appellant appealed the ministry’s decision. In this order, the adjudicator upholds the ministry’s decision not to disclose the personal information at issue as a result of the application of the personal privacy exemption in section 21(1) or 49(b). The adjudicator finds that the exception to the personal privacy exemption for compassionate reasons at section 21(4)(d) was not established for the personal information remaining at issue. The adjudicator orders the ministry to disclose one photograph to the appellant because it does not contain any personal information.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, sections 2(1) (definition of personal information), 21(1), 21(2)(f), 21(3)(a) and (b), 21(4)(d) and 49(b).

Orders and Investigation Reports Considered: MO-2237, MO-3069, MO-3260

OVERVIEW:

[1]  The appellant made a request to the Ministry of Community Safety and Correctional Services (the ministry) under the Freedom of Information and Protection of Privacy Act  (the Act ) for access to records related to his brother’s (the deceased) death. In particular, the appellant pursues access to:

• Names of all police officers present at the scene of his death who were involved in the investigation
• Notes of the police officers described above
• 911 audio call and transcript
• All statements of witnesses or other persons of interest
• Results of blood work (alcohol, pharmaceuticals, poison, etc.)
• Pictures of the scene
• Ownership of the gun used
• Prints present on the gun/shell casings/trigger
• Reports of the police investigation
• All other information available from the investigation contained in police files
• Coroner’s notes, findings and reports

The appellant sought access to the records relying on section 21(4)(d) (compassionate grounds) of the Act .

[2]  The ministry notified an individual whose interests may be affected by the disclosure of the records (the affected party). The affected party did not consent to the disclosure of their personal information.

[3]  The ministry subsequently issued a decision granting partial access to the records. The ministry withheld portions of the records under section 49(a), in conjunction with the law enforcement exemptions in sections 14(1)(l) (facilitate commission of an unlawful act) and 14(2)(a) (law enforcement report), and 49(b) (personal privacy) of the Act . In support of its section 49(b) claim, the ministry raised the application of the presumption in section 21(3)(b) and the factor weighing against disclosure in section 21(2)(f). The ministry also withheld parts of the records, claiming that they were not responsive to the request. The ministry advised the appellant that it considered the compassionate grounds provision in section 21(4)(d) in making its decision on access.

[4]  During mediation, the ministry agreed to consider the possibility of disclosing additional information pursuant to section 21(4) (d) of the Act . Subsequently, the ministry issued two supplementary decisions providing the appellant with additional information. Specifically, the ministry granted the appellant access to some of the photographs and disclosed additional portions of the police reports and officers’ notes to the appellant. The ministry continued to deny the appellant access to the 911 recording, in full, and to the withheld parts of the remaining records pursuant to sections 49(a), read with sections 14(1)(l) and 14(2)(a), and 49(b). The ministry continued to withhold portions of the records that it deemed to be not responsive to the request.

[5]  The ministry also advised the mediator that the appellant requested records in the Ontario Provincial Police investigation file and that all existing records responsive to the request were identified and located. The ministry clarified that there were no 911 recording transcripts, coroner’s records or records related to blood work, gun ownership and fingerprints in the police file. Further, the ministry stated that the police did not take any formal witness statements. The ministry suggested that the appellant make a new request to the coroner’s office for any coroner’s records, which may include information related to blood work.

[6]  The mediator notified the affected party but did not obtain consent to disclose any of their personal information.

[7]  The appellant advised the mediator that he pursues access to the remaining undisclosed photographs, the 911 recording and the information severed from the police reports and officers’ notes. The appellant confirmed that he does not pursue access to

• Address, phone numbers and dates of birth of any affected parties
• Names or identification numbers of individuals such as funeral home staff or ambulance attendants
• Information withheld under section 14(1)(l), including police codes
• Non-responsive information

The appellant advised the mediator that he would make a new request to the coroner’s office and did not challenge the ministry’s position that it identified all the responsive records.

[8]  Mediation did not resolve the issues under appeal and the file was subsequently moved to adjudication for an inquiry. The adjudicator with carriage of the appeal began her inquiry by seeking representations from the ministry and an affected party. The ministry and the affected party submitted representations. In its representations, the ministry advised that it no longer relies on section 14(2)(a) to withhold portions of the records. Accordingly, section 14(2)(a) is no longer at issue in this appeal.

[9]  Upon review of the ministry and affected party’s representations, the adjudicator invited the appellant to submit representations in response to the ministry’s representations and the Notice of Inquiry. The ministry’s representations were shared with the appellant in accordance with Practice Direction Number 7 of the IPC’s Code of Procedure. The adjudicator did not share the affected party’s representations with the appellant for confidentiality reasons. The appellant did not submit representations.

[10]  The appeal was then transferred to me. In the discussion that follows, I uphold the ministry’s decision to withhold the majority of the records under the personal privacy exemption. I order the ministry to disclose one photograph to the appellant.

RECORDS:

[11]  The records at issue consist of photographs, the 911 recording and withheld portions of the Occurrence Summary, Homicide/Sudden Death report and officers’ notes.

ISSUES:

1. Do the records contain personal information as defined in section 2(1) and, if so, to whom does it relate?
2. Does the personal privacy exemption in section 21(1) or 49(b) apply to the records at issue?

DISCUSSION:

Issue A: Do the records contain personal information as defined in section 2(1) and, if so, to whom does it relate?

[12]  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,

(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

(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;

[13]  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. [1] To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [2]

[14]  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. [3] 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. [4]

[15]  The ministry submits that the records contain a “significant amount” of personal information belonging to the affected party, including their driver’s licence number, photographs of their residence and statements they provided to the police about themselves in response to the investigation. In addition, the ministry submits that the records contain personal information belonging to the deceased, including information about his health and information relating to his criminal record. The ministry submits that, given the context in which the records were created, all of the personal information withheld relates to the individuals acting in their personal capacity.

[16]  There are three categories of records that remain at issue: (1) photographs; (2) the recording of the 911 call; and (3) the withheld portions of the Occurrence Summary, Homicide/Sudden Death report and officers’ notes.

[17]  The ministry located 65 photographs in response to the appellant’s request and disclosed 18 of them to him. I have reviewed the 47 photographs that remain at issue and find that most of them contain information that could be characterized as the personal information of identifiable individuals. These include photographs that contain the name of the affected party and/or the interior of a house.

[18]  In Order MO-3069, Assistant Commissioner Sherry Liang found that photographs of the interior of a home convey information about the residents of a home, such as their possessions and lifestyle. Assistant Commissioner Liang also found that despite the fact that the photographs did not depict images of the individuals or their names, these individuals were well known to the appellant. This analysis was adopted by Adjudicator Cathy Hamilton in Order MO-3260 for photographs of the interior of a home and the situation is the same in this case. Consequently, I adopt Assistant Commissioner Liang’s analysis for the purposes of this appeal and I find all of the photographs depicting the interior of the house to contain the personal information of the deceased, the affected party and the other inhabitant(s) of that home. Specifically, I find that the photographs qualify as the personal information of both the deceased and the affected party, as they depict the interior of their shared abode.

[19]  However, the fourth photograph on the disc provided by the ministry depicts the exterior of the premises and does not contain information that would reveal anything of a personal nature about an identifiable individual. Therefore, I find that this photograph does not contain personal information and would not qualify for exempt under section 21(1)  of the Act . I will order the ministry to disclose this photograph to the appellant.

[20]  With regard to the remaining 46 photographs at issue, I find that they contain the personal information of identifiable individuals other than the appellant. Accordingly, I will consider whether they are exempt from disclosure under section 21(1)  of the Act .

[21]  I find that the 911 recording contains the personal information of identifiable individuals, specifically the affected party, the deceased and a third individual. Specifically, the recording contains their names and information about their family status (paragraph (a)), addresses (paragraph (d)), personal views or opinions (paragraph (e)), the view or opinions of another individual about another individual (paragraph (g)) and their names where they appear with other personal information relating to them (paragraph (h)). The recording contains the affected party’s voice and mannerisms and contains information about the deceased and affected party’s activities.

[22]  I find that the Occurrence Summary, Homicide/Sudden Death report and officers’ notes contain information that can be characterized as personal information of identifiable individuals, specifically the appellant, the affected party and the deceased. In particular, the Occurrence Summary, Homicide/Sudden Death report and officers’ notes contain the appellant’s address (paragraph (d)), the personal views or opinions of the affected party (paragraph (e)), the view or opinions of an individual about another individual (paragraph (g)) and their names where they appear with other personal information relating to them (paragraph (h)). The ministry disclosed significant portions of the records to the appellant, withholding only certain portions that relate directly to the deceased and/or the affected party.

[23]  Accordingly, the records contain the personal information of the affected party, the deceased, the appellant and another individual. I will consider whether section 21(1) applies to the photographs that remain at issue and the 911 recording. I found above that the Occurrence Summary, Homicide/Sudden Death report and officers’ notes contain the appellant’s personal information. As such, I must consider access to the Occurrence Summary, Homicide/Sudden Death report and officers’ notes under Part III of the Act and determine whether the discretionary exemption at section 49(b) applies to them.

Issue B: Does the personal privacy exemption in section 21(1) or 49(b) apply to the records at issue?

[24]  Under section 21(1), where a record contains personal information of another individual but not the requester, the institution is prohibited from disclosing that information unless one of the exceptions in paragraphs (a) to (f) of section 21(1) applies. In the case before me, the photographs and 911 recording do not contain the personal information of the appellant, but do contain the personal information of the deceased, affected party and a third individual. If the information fits within any of paragraphs (a) to (f) in section 21(1), it is not exempt from disclosure under section 21(1). I find that the information at issue in this appeal does not fit within any of paragraphs (a) to (e) of section 21(1) and the only exception that could apply is paragraph (f), which states

21(1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

(f) if the disclosure does not constitute an unjustified invasion of personal privacy.

[25]  As noted above, the Occurrence Summary, Homicide/Sudden Death report and officers’ notes must be reviewed under section 49(b) because these records contain both the appellant’s and other individuals’ personal information.

[26]  Under section 49(b), where a record contains personal information of both the requester and another individual, and disclosure of the information would be an unjustified invasion of the other individual’s personal privacy, the institution may refuse to disclose that information to the requester. Since the section 49(b) exemption is discretionary, however, the institution may also decide to disclose the information to the requester.

[27]  Under both the section 21(1) and 49(b) analyses, I will consider the possible application of the provisions in section 21(2), (3) and (4) to establish whether disclosure of the information at issue amounts to an unjustified invasion of personal privacy and is exempt from disclosure.

Sections 21(2) and (3)

[28]  Under section 21(1), if any of paragraphs (a) to (h) of section 21(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy. Once established, a presumed unjustified invasion of personal privacy under section 21(3) can only be overcome if either one of the provisions at section 21(3) can only be overcome if either one of the provisions at section 21(4) or the public interest override at section 23 applies. [5]

[29]  If the records are not covered by a presumption in section 21(3), section 21(2) lists various criteria that might be relevant in determining whether disclosure of the personal information would amount to an unjustified invasion of personal privacy. In such cases, the personal information will be exempt unless the circumstances favour disclosure. [6]

[30]  The ministry submits that it withheld the records on the basis that their disclosure would constitute an unjustified invasion of the affected party and deceased’s personal privacy pursuant to section 21(1)  of the Act . The ministry further contends that the disclosure of the information at issue is presumed to constitute an unjustified invasion of personal privacy pursuant to sections 21(3) (a) and (b) of the Act , which state

21(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;

(b) 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;

[31]  The ministry submits that section 21(3)(a) applies to underlying medical information about the deceased and this information is not directly related to his death. Specifically, the ministry submits that this medical information is contained in the Synopsis portion of page 5 of the records. I have reviewed the records and accept that the records, specifically page 5, contain information relating to the deceased’s medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation. Accordingly, subject to the possible application of the exception at section 21(4)(d), I find that the disclosure of this information is presumed to result in an unjustified invasion of personal privacy within the meaning of section 21(3)(a).

[32]  The ministry submits that the records “fall squarely” within the scope of section 21(3)(b). The ministry submits that the Ontario Provincial Police (the OPP) investigated the death of the deceased to determine whether there was any criminal wrongdoing. The ministry submits that if the OPP investigation had found that there was criminal wrongdoing, investigators could have laid charges under the Criminal Code . Based on my review of the records, it is clear that they were compiled as part of an investigation into a possible violation of law. Although no charges were laid, the investigation could have given rise to charges under the Criminal Code . Accordingly, subject to the possible application of the exception at section 21(4)(d), I find that the disclosure of this information is presumed to result in an unjustified invasion of personal privacy within the meaning of section 21(3)(a).

[33]  In addition to section 21(3), the ministry refers to section 21(2)(f) as a factor weighing against disclosure of the information at issue. Section 21(2)(f) states

21(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,

(f) the personal information is highly sensitive

[34]  The ministry submits that the information at issue is highly sensitive for the following reasons:

• The records relate to a “highly traumatic event” involving the affected party
• The affected party was notified of the request for their personal information twice and they declined to provide their consent on both occasions. The ministry submits that the disclosure of the personal information at issue contrary to the affected party’s wishes would cause significant personal distress to them, especially given the context in which the records were created
• The affected party will permanently lose control over their own personal information if these records are ordered disclosed.

[35]  During the inquiry, the adjudicator originally assigned to this appeal invited the affected party to make submissions in response to the Notice of Inquiry. The affected party made representations, but due to confidentiality concerns, I will only summarize them generally. In their representations, the affected party submits that the disclosure of the information at issue will result in significant personal distress and does not wish for any additional information to be made public regarding the deceased’s death.

[36]  Based on my review of the parties’ representations and the information at issue, I find that the personal information that remains at issue is highly sensitive and this factor listed in section 21(2)(f) applies to weigh against disclosure of the records. In my view, it is clear from the circumstances surrounding the deceased’s death and the affected party’s representations that any further disclosure would result in significant personal distress to them.

[37]  I have reviewed the remaining factors listed in section 21(2) and find that none apply.

[38]  Therefore, as the presumptions in section 21(3)(a) and (b) apply, and taking the factor in section 21(2)(f) into consideration, I find that disclosure of the personal information in the records would constitute an unjustified invasion of the deceased and affected party’s personal privacy. Subject to my findings regarding the possible application of section 21(4)(d) below, I find that the information that remains at issue is exempt under section 21(1)  or 49 (b) of the Act .

Section 21(4)(d) – compassionate reasons

[39]  Section 21(4)(d) permits the disclosure of personal information about a deceased individual to the spouse or close relative of the individual where it is desirable to do so for compassionate reasons. Based on the wording of this provision, a finding that section 21(4)(d) applies to some or all of the personal information means that disclosure would not be an unjustified invasion of personal privacy. Section 21(4)(d) reads

… a disclosure does not constitute an unjustified invasion of personal privacy if it,

discloses the personal information about a deceased individual to the spouse or a close relative of the deceased individual, and the head is satisfied that, in the circumstances, the disclosure is desirable for compassionate reasons.

[40]  Personal information about a deceased individual can include information that also qualifies as that of another individual. Where this is the case, the circumstances to be considered include the fact that the personal information of the deceased is also the personal information of another individual or individuals. Additionally, the factors and circumstances referred to in section 21(2) may provide assistance in this regard, but the overall circumstances must be considered and weighed in any application of section 21(4)(d). [7]

[41]  The application of section 21(4)(d) requires a consideration of the following questions, all of which must be answered in the affirmative for the section to apply:

1. Do the records contain the personal information of a deceased individual?
2. Is the requester a spouse or close relative of the deceased individual?
3. Is the disclosure of the personal information of the deceased individual desirable for compassionate reasons, in the circumstances of the request? [8]

[42]  With regard the first question, I found that the records, considered in their entirety, contain the personal information of the deceased in my discussion of Issue A, above. In addition, I found that the records also contain the personal information of the affected party.

[43]  With regard to the second question, after the death of an individual, it is that person’s spouse or close relatives who are best able to act in their best interests with regard to whether or not particular kinds of personal information would assist them in the grieving process. The task of the institution is to determine whether, “in the circumstances, disclosure is desirable for compassionate reasons.” [9]

[44]  The term close relative is defined in section 2(1)  of the Act  as:

“close relative” means a parent, child, grandparent, grandchild, brother, sister, uncle, aunt, nephew or niece, whether related by blood or adoption.

The appellant is the deceased’s brother. Therefore, he satisfies the second part of the test under section 21(4)(d).

[45]  With regard to the third question that must be established for the exception at section 21(4)(d) to apply, I must consider whether the disclosure of the personal information of the deceased is desirable for compassionate reasons, which has generally been described as information that will assist a close relative in understanding the events leading up to and surrounding the death of an individual. [10]

[46]  The ministry submits that it considered whether section 21(4)(d) applies upon receipt of the original request. The ministry states that it determined that the exception applies to portions of the records located in response to the appellant’s request and disclosed a “significant amount” of the deceased’s personal information to the appellant pursuant to section 21(4)(d).

[47]  With regard to the information that remains at issue, the ministry submits that the compassionate disclosure provision puts the ministry in a “challenging position” when close relatives do not agree whether disclosure is required. The ministry notes that Order MO-2245 states that compassionate disclosure was designed to allow grieving families to have the records they feel that they require for closure. However, the ministry states that there is a challenge in determining the amount of information to disclose when there is disagreement amongst family members. The ministry submits that it considered the personal circumstances of the appellant and the affected party in determining what personal information of the deceased ought to be disclosed to the appellant. The ministry states that it disclosed significant amounts of information relating to the deceased’s death because the appellant is a close relative of the deceased. The ministry submits that the fact that the affected party did not consent to the disclosure of their personal information and the fact that the information that remains at issue is inherently sensitive caused the ministry to withhold that information.

[48]  As stated above, the appellant did not make submissions in response to the Notice of Inquiry.

[49]  In Order MO-2237, Commissioner Brian Beamish applied the municipal equivalent of section 21(4)(d), section 14(4)(c) of the municipal Act, to records which contained the intermingled personal information of several identifiable individuals, including the deceased daughter of the appellant in that case. He made the following comments on the application of section 14(4)(c) of the municipal Act:

Accordingly, in my view, it is consistent with both the definition of “personal information” in section 2(1) and the legislative purpose behind this section to interpret “personal information about a deceased individual” as including not only personal information solely relating to the deceased, but also information that qualifies as the personal information of not only the deceased, but another individual or individuals as well.

The conclusion that personal information about a deceased individual can include information about other individuals, raises the further question of how the information of those other individuals should be assessed in deciding what to disclose under section 14(4)(c). In my view, assistance is provided in that regard by the legislative text, which permits disclosure that is “in the circumstances, desirable for compassionate reasons.”

Where this is the case, the “circumstances” to be considered would, in my view, include the fact that the personal information of the deceased is also the personal information of another individual or individuals. The factors and circumstances referred to in section 14(2) [the municipal equivalent to section 21(2)  of the Act ] may provide assistance in this regard, but the overall circumstances must be considered and weighed in any application of section 14(4)(c).

As well, the fact that the protection of personal privacy is one of the Act ’s purposes, articulated in section 1(b), must be considered in assessing whether to disclose information that, in addition to being personal information of the deceased, also qualifies as the personal information of another individual or individuals.

I agree with Commissioner Beamish’s approach and adopt it for the purposes of the current appeal.

[50]  In the circumstances before me, the ministry disclosed the majority of the information in the responsive records to the appellant and only a small amount of information was withheld. On my review of the specific and limited amount of information that remains at issue, I find that it cannot be described as the personal information of the deceased alone. The personal information that remains at issue either relates solely to the affected party or is their personal information intertwined or comingled with either the deceased or another individual, in the case of the 911 recording. Furthermore, I find that the personal information relating to the deceased is inextricably intertwined with that of the affected party in a manner that cannot be fully resolved by severing.

[51]  Based on my review of the information that remains at issue and the parties’ representations, I find that section 21(4)(d) does not apply in the circumstances of this appeal. As stated above, the ministry disclosed the majority of the records at issue to the appellant. The small amount of information that remains at issue is not the personal information of the deceased alone, but also qualifies as the personal information of the affected party. The personal information of the deceased is inextricably intertwined with that of the affected party, who did not consent to the disclosure of the records and provided me with submissions to support the application of the factor weighing in favour of non-disclosure in section 21(2)(f). I reviewed the information that the ministry disclosed to the appellant. In my view, this information provides him with an understanding of the events leading up to and surrounding the death of his brother. In light of these circumstances and in the absence of representations from the appellant, I find that it has not been established that the disclosure of the specific information remaining at issue is desirable for compassionate reasons as contemplated by the third part of the section 21(4)(d) test.

[52]  As the third part of the test was not established, I find that the exception permitting the disclosure of personal information in compassionate circumstances at section 21(4)(d) does not apply in the circumstances of this appeal.

[53]  Therefore, having considered the factors, presumptions and exceptions set out in sections 21(2), (3) and (4), I conclude that disclosure of the information that remains at issue would amount to an unjustified invasion of the personal privacy of individuals other than the appellant. Therefore, I find that the ministry withheld the information that remains at issue properly under the personal privacy exemption at section 21(1)  or 49 (b) of the Act .

[54]  Finally, with regard to the Occurrence Summary, Homicide/Sudden Death report and officers’ notes which I found exempt from disclosure under section 49(b), I uphold the ministry’s exercise of discretion. Based on my review of the circumstances of the appeal, I am satisfied that the ministry exercised its discretion to not disclose the specific and limited information at issue in good faith and for a proper purpose taking into account all relevant factors.

ORDER:

I order the ministry to disclose the fourth photograph on the disc provided to the IPC to the appellant by June 16, 2017. I uphold the ministry’s decision to withhold the remainder of the information at issue.

Original Signed By:		May 16, 2017
Justine Wai
Adjudicator