ORDER PO-4087

Appeals PA19-00182 and PA19-00243

Ministry of the Solicitor General

November 19, 2020

Summary: The Ministry of the Solicitor General (the ministry) received a request under the Freedom of Information and Protection of Privacy Act  (the Act ) for all police reports relating to the death of the requester’s son. After notifying the deceased’s spouse, who objected to disclosure, the ministry granted partial access to the records it located taking the position that the withheld information remaining at issue qualified for exemption under the Act . The requester (the deceased’s father) appealed the decision to withhold information and the deceased’s spouse appealed the decision to disclose information. In this order, the adjudicator finds that the information in the records qualifies for exemption under either the mandatory personal privacy exemption at section 21(1), or the discretionary personal privacy exemption at section 49(b), and that the exception in section 21(4) (d) of the Act  (disclosure for compassionate reasons) only applies to some of the information that the ministry decided to disclose. The adjudicator orders the ministry to only disclose that information to the deceased’s father.

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)(a), 21(2)(f), 21(3)(b), 21(4)(d) and 49(b).

Orders Considered: Orders MO-2245 and P-1014.

OVERVIEW:

[1]  This appeal addresses a situation where close relatives of a deceased individual have competing interests in the disclosure of information. In this appeal the deceased’s father asked that information be released to him on compassionate grounds under section 21(4) (d) of the Freedom of  Information and Protection of Privacy Act  (the Act  or FIPPA ) but the deceased’s spouse objects to the release of any information. The position of the requester (the deceased’s father) and the deceased’s spouse, and the operation of the exception at section 21(4) (d) of the Act  (disclosure for compassionate grounds), are discussed below.

[2]  The matter began when the Ministry of the Solicitor General (the ministry) received a request under the Act  for access to records relating to the tragic death of the requester’s son.

[3]  Following discussions between the ministry and the requester (the deceased’s father), the ministry confirmed that the records were being sought for compassionate reasons, and the request was clarified to be for access to the following information:

“…all Ontario Provincial Police (OPP) records (including but not limited to reports, officer notes, witness statements, 911 recordings, and scene photos) related to the [specified date] death of [the requester’s son].”

[4]  After notifying the deceased’s spouse, who objected to the disclosure of information, the ministry issued an access decision. The ministry granted the deceased’s father partial access to the responsive records pursuant to section 21(4) (d) of the Act  which provides for the disclosure of personal information to the spouse or close relative of deceased individuals where disclosure is desirable for compassionate reasons. The ministry relied on section 49(a) (discretion to refuse requester’s own information), in conjunction with sections 14(1)(l) (facilitate commission of an unlawful act) and 22(a) (information published or available to the public) as well as sections 21(1) and 49(b) (personal privacy) of the Act  to deny access to the information it withheld. The ministry’s decision letter further advised the deceased’s father that it considered some information in the records to be non-responsive to the request.

[5]  The deceased’s spouse appealed the ministry’s decision to disclose the requested information and appeal PA19-00182 was opened. The deceased’s father appealed the ministry’s decision to deny access to information and appeal PA19-00243 was opened.

[6]  At mediation, the ministry confirmed with the mediator it had relied on section 21(4) (d) of the Act  (compassionate grounds) in making its access decision. In addition, following discussions with the mediator about the nature of the information the ministry withheld, the deceased’s father advised the mediator that he does not wish to pursue access to the following information in the records:

• Police codes and other such information relating to the operations of the police, which had been withheld pursuant to section 49 (a) of the Act , in conjunction with the law enforcement exemption in section 14(1) (l) of the Act .
• Information withheld under section 49 (a) of the Act , in conjunction with section 22 (a) of the Act , as the ministry authorized the mediator to give the appellant a description of the withheld information. As a result, the application of those sections and a portion of page 53 of the records is no longer at issue in this appeal.
• The portions of the records withheld by the police as not being responsive to the request.

[7]  At mediation, the deceased’s father also advised that he is not seeking access to records that are photos or videos. Accordingly, those types of records are also no longer at issue in the appeal.

[8]  Mediation did not resolve the appeals and they were moved to the adjudication stage of the appeals process, where an adjudicator may conduct an inquiry under the Act . As the appeals related to the same records, I decided to address them under a single Notice of Inquiry.

[9]  I commenced my inquiry by sending the ministry a Notice of Inquiry setting out the facts and issues in the appeal. The ministry provided responding representations. I then sought representations from the deceased’s spouse and the deceased’s father on the facts and issues set out in a Notice of Inquiry as well as the ministry’s representations. Only the deceased’s father provided responding representations. In the course of adjudication, the deceased’s father clarified that he was not seeking any names of employees, such as civilian police employees or ambulance attendants or their associated employee or identification numbers. Accordingly, that information is also no longer at issue in the appeal. I have highlighted this information on a copy of the severed records that I have provided to the ministry along with a copy of this order.

[10]  Also during adjudication, in response to my request, the ministry provided this office with a copy of the severed records at issue in these appeals in the form that the ministry had originally decided to disclose to the deceased’s father.

[11]  In this order, I find that sections 21(1) or 49(b) apply to all the records at issue.

[12]  However, applying the exception section 21(4)(d) which permits disclosure for compassionate reasons, I uphold the ministry’s access decision with respect to the information that it decided to disclose, with the exception of certain information that I have highlighted on a copy of the severed records provided to the ministry along with a copy of this order.

RECORDS:

[13]  The information remaining at issue consists of OPP records including an audio recording on a CD.

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 mandatory exemption at section 21(1) or the discretionary exemption at section 49(b) apply to the information?

DISCUSSION:

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

[14]  The ministry relies on the mandatory exemption in section 21(1) and the discretionary exemption in section 49(b) to sever responsive information. Before I can determine which sections of the Act  may apply to the records, 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;

[15]  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]

[16]  To qualify as personal information, the information must be about the individual in a personal capacity. To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [2]

The ministry’s representations

[17]  The ministry takes the position that the records contain personal information as defined in section 2(1)  of the Act . It states that the records contain personal information belonging to the deceased’s spouse and other third party individuals. The police add that the withheld information discloses the deceased’s spouse’s involvement in the investigation and contains her witness statement.

[18]  The ministry submits that due to the subject matter of the records, severing identifying information of the affected individuals, such as names, might not serve to remove personal information from the records.

The representations of the deceased’s father

[19]  The deceased’s father states that he only made the request to ensure that the investigation into his son’s death was thorough and proper. He feels that this has not occurred based on what he says is the conflicting information he received and some disturbing comments he said were made by the OPP investigation unit. He submits that he does not wish to disgrace his son’s memory or cause harm to the deceased’s spouse or his grandchildren. He says that all he seeks is “the truth about what happened to my son.”

[20]  He then recounts the timeline of events about when and how he learned of the death of his son, how he believed he received inconsistent information from the deceased’s spouse and his unsatisfactory interactions with the police regarding the search for information about his son’s death.

[21]  He also shares his view of the role of the deceased’s spouse in a variety of familial relationships, including the relationship she had with the deceased. It is evident that this, along with the death of his son, had been upsetting to him.

The deceased’s spouse’s position

[22]  The deceased’s spouse did not provide representations at the Notice of Inquiry stage. However, it is clear that she has objected to any disclosure of any information in the records and has appealed the ministry’s decision to disclose information.

Analysis and finding

[23]  I have reviewed the records at issue and I am satisfied that they all contain the personal information of the deceased that falls within the definition of personal information at section 2(1)  of the Act . In addition, I find that portions of the records contain information pertaining to the deceased’s father and the deceased’s spouse as well as other identifiable individuals that falls within the scope of the definition of personal information at section 2(1)  of the Act .

Issue B: Does the mandatory exemption at section 21(1) or the discretionary exemption at section 49(b) apply to the information?

[24]  Section 47(1)  of the Act  gives individuals a general right of access to their personal information held by an institution. Section 49 provides a number of exemptions from this right.

[25]  Under section 49(b), found in Part III of the Act, where a record contains personal information of both the requester (in this case the deceased’s father) 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.

[26]  In contrast, under section 21(1), found in Part II, where a record contains personal information of another individual but not the requester (the deceased’s father), the institution is prohibited from disclosing that information unless one of the exceptions in sections 21(1)(a) to (e) applies, or unless disclosure would not be an unjustified invasion of personal privacy. [3]

[27]  In applying either of the section 49(b) or 21(1) exemptions, sections 21(2) and (3) help in determining whether disclosure would or would not be an unjustified invasion of privacy. Also, section 21(4) lists situations that would not be an unjustified invasion of personal privacy.

[28]  If the records are not covered by a presumption in section 21(3), section 21(2) lists various factors that may be relevant in determining whether disclosure of the personal information would be an unjustified invasion of personal privacy and the information will be exempt unless the circumstances favour disclosure. [4]

[29]  The ministry claims that the information at issue falls within the scope of the presumption at section 21(3)(b) and the factor at section 21(2)(f). The deceased’s father questions the sufficiency of the OPP investigation and the foundation for the OPP’s conclusion, thereby raising the possible application of the factor at section 21(2)(a). In addition, the possible application of the compassionate grounds exception at section 21(4) (d) of the Act  is at issue in the appeal.

[30]  Sections 21(2)(a), 21(2)(f), 21(3)(b) and 21(4)(d) read:

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,

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

(f) the personal information is highly sensitive;

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

(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;

(4) Despite subsection (3), a disclosure does not constitute an unjustified invasion of personal privacy if it,

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

The representations

[31]  The ministry submits that the presumption at section 21(3) (b) of the Act  applies to the information in the records because the records were collected by the OPP, a law enforcement agency, as a result of a law enforcement investigation they initiated arising from an unfortunate death. The ministry submits that:

The personal information was collected as part of a law enforcement investigation resulting from the death of a named individual. The personal information in the records was collected because the OPP was investigating whether there was any criminal wrongdoing as a result of the individual’s death. This type of investigation is standard practice when the OPP are determining how an individual died. In the end, no criminal wrongdoing was found to occur, and therefore no charges were laid, but the laying of charges is not required for us to apply section 21(3)(b). …

[32]  The ministry also relies on the factor set out at section 21(2)(f) of the Act and submits that the information at issue is highly sensitive personal information of third party individuals.

[33]  With respect to the application of the section 21(4)(d) exception to the section 21(1) exemption, the ministry submits that in making its access decision it sought to partially disclose the records, so that the deceased’s father has a greater understanding of his son’s passing for compassionate reasons. It takes the position that it has acted in accordance with the principle of compassionate disclosure prescribed in section 21(4)(d).

[34]  The ministry adds:

… we are not “satisfied that, in the circumstances” further disclosure is desirable for compassionate reasons. The [deceased’s spouse] has not consented to the disclosure of their personal information or that of three minor children, Due to the inherent sensitivity of the personal information, especially given that it is contained in law enforcement records, we believe that any disclosure in contravention of the [deceased’s spouse’s] stated wishes would constitute an unjustified invasion of their personal privacy. We are not satisfied that based on the factual considerations that we have been aware of, that the [deceased’s father’s] rights under section 21(4)(d) override the [deceased’s spouse’s] privacy rights.

[35]  The deceased’s father has taken the position that he made the request to ensure that the investigation into his son’s death was thorough and proper. He feels that this has not occurred based on what he says is the conflicting information he received and some disturbing comments he said were made by the OPP investigation unit. He states that all he seeks is the truth about what happened to his son.

Analysis and findings

21(2)(a): public scrutiny

[36]  Section 21(2)(a) contemplates disclosure in order to subject the activities of the government (as opposed to the views or actions of private individuals) to public scrutiny. [5] Simple adherence to established internal procedures will often be inadequate, and institutions should consider the broader interests of public accountability in considering whether disclosure is desirable for the purpose outlined in section 21(2)(a). [6]

[37]  In Order P-1014, Adjudicator John Higgins concluded that public policy supported “proper disclosure” in proceedings such as the workplace harassment investigation at the centre of that appeal, and that the support was grounded in a desire to promote adherence to the principles of natural justice. Adjudicator Higgins agreed with the appellant in that appeal that “an appropriate degree of disclosure to the parties” involved in such investigations was a matter of considerable importance. However, on the facts of that appeal, Adjudicator Higgins concluded that “the interest of a party to a given proceeding in disclosure of information about that proceeding is essentially a private one.” Accordingly, because the appellant in that matter wished to review the records for himself to try to assure himself that “justice was done in this particular investigation, in which he was personally involved,” Adjudicator Higgins found that the factor at section 21(2)(a) did not apply.

[38]  Although the records in the current appeal are not related to an investigation into a complaint of workplace harassment, in my view, the analysis of Adjudicator Higgins provides some guidance in the matter before me. In this regard, I am not satisfied that the deceased’s father’s motives in seeking access to the records are more than private in nature to satisfy himself that the conduct of the OPP in relation to its investigation into the death of his son was appropriate. As in Order P-1014, this is a private interest, and I therefore find that section 21(2)(a) is not a relevant consideration. Accordingly, I find that the factor in section 21(2)(a) does not apply to the personal information in the records.

21(2)(f): highly sensitive

[39]  To be considered highly sensitive, there must be a reasonable expectation of significant personal distress if the information is disclosed. [7] In my view, a great deal of the personal information in the records can be considered to be highly sensitive since the records contain information detailing the particulars of the deceased’s death, the perspective of various individuals about what occurred, the circumstances surrounding the death and the nature of the deceased’s personal relationships. Further, with regard to certain information that the police originally sought to withhold, as well as portions that I have highlighted on a copy of the severed records that I have provided to the ministry along with a copy of this order, I am satisfied that there is a reasonable expectation that the deceased’s spouse and her children would experience significant personal distress if this information were disclosed to the deceased’s father. Therefore, I find that section 21(2)(f) weighs heavily in favour of a finding that the disclosure of this information would constitute an unjustified invasion of personal privacy.

21(3)(b): investigation into violation of law

[40]  Even if no criminal proceedings were commenced against any individuals, section 21(3)(b) may still apply. The presumption only requires that there be an investigation into a possible violation of law. [8] The presumption can also apply to records created as part of a law enforcement investigation where charges are subsequently withdrawn. [9]

[41]  The ministry submits that the presumption against disclosure in section 21(3)(b) applies to the information in the records because it was gathered as part of an investigation into a possible violation of law, namely the Criminal Code of Canada .

[42]  I accept the ministry’s position. Even if the deceased’s father takes issue with the adequacy of the OPP’s investigation, based on the content of the records, it is clear that the personal information was compiled by the OPP and is identifiable as part of their investigation into a possible violation of law. I therefore find that the personal information in the records fits within the ambit of the presumption against disclosure in section 21(3)(b).

[43]  Therefore, I find that section 21(1) applies to information in the records that do not also contain the personal information of the deceased’s father. As a result, section 21(1)  of the Act  applies to the information that is subject to analysis pursuant to Part II of the Act, specifically, the deceased’s personal information where it is mixed with that of identifiable individuals other than the deceased’s father. Accordingly, I find that this information qualifies for exemption under section 21(1)  of the Act .

[44]  Section 49 (b) of the Act  applies to the information that is subject to analysis pursuant to Part III of the Act, specifically, the deceased’s father’s own personal information where it is mixed with the personal information of other identifiable individuals, including the deceased. In determining whether the disclosure of the information in the records would be an unjustified invasion of personal privacy under section 49(b), this office will consider, and weigh, the factors and presumptions in sections 21(2) and (3) and balance the interests of the parties. [10] I concluded above that personal information in the records is subject to the presumption at section 21(3)(b) and the factor at section 21(2)(f). I concluded above that section 21(2)(a) does not apply and, in my view, there are no other factors favouring disclosure. Considering and weighing the factor and presumption and balancing the interests of the parties, subject to my analysis on the application of section 21(4)(d) below, I find that disclosure of this information in the records would be an unjustified invasion of personal privacy under section 49(b).

21(4)(d) – disclosure is desirable for compassionate reasons

[45]  I will now consider the application of the exception in section 21(4)(d) to the information that I have found to be subject to section 21(1) or 49(b), as the case may be. The principle issue in relation to the disclosure of the records at issue is whether the exception to the exemption in section 21(4) (d) of the Act  permits the disclosure of the deceased’s personal information (some of which is co-mingled with the information of other individuals, including the deceased’s father and the deceased’s spouse)

[46]  As the section 21(4)(d) exception can only apply to the personal information of the deceased, I will not be considering its application to the personal information that relates solely to other identifiable individuals [11] .

[47]  The application of section 21(4)(d) requires a consideration of the following questions, all of which must be answered in the affirmative in order 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? [12]

[48]  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 would 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 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). [13]

[49]  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.” [14]

Step 1 - Personal Information of the Deceased

[50]  I have found above that the records as a whole contain the personal information of the deceased. In addition, the records contain the personal information of other individuals, including the deceased’s father and the deceased’s spouse and children.

[51]  I am therefore satisfied that the first requirement for the application of section 21(4)(d) is satisfied.

Step 2 - Spouse or “Close Relative”

[52]   “Close Relative” is defined in section 2(1)  of the Act :

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

[53]  I am satisfied that the requester is the father of the deceased individual, and that he is a “close relative.” I find that this requirement for the application of section 21(4)(d) is also satisfied.

Step 3 - Desirable for Compassionate Reasons

[54]  With respect to the application of section 21(4) (d) of the Act , the ministry submits that it has decided to sever and release information in the records to the deceased’s father but has decided to withhold the remainder. It takes the position that its access decision is in accordance with the principle of compassionate disclosure prescribed by section 21(4)(d).

[55]  In Order MO-2245, which dealt with an equivalent provision in the municipal version of the Act , [15] the adjudicator ordered the disclosure of highly sensitive personal information about the circumstances surrounding the death of an individual to a close relative. In doing so, the adjudicator stated the following:

By means of section 14(4)(c), the Legislature has recognized a group of individuals who have a special interest in gaining access to the personal information of a deceased individual. The intent of the section is to allow for the disclosure of information to family members even though that information would not have been disclosable to them during the life of the individual. In my view, it is a tacit recognition by the Legislature that, 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, and this office on appeal, is to determine whether, “in the circumstances, disclosure is desirable for compassionate reasons.” This does not place the institution “in loco parentis” in the manner suggested by the Police when the disclosure is to adult relatives. Again, on the question of what is “compassionate”, I accept the evidence and representations of the appellant.

[56]  I adopt this approach in this appeal. I accept that the deceased’s father requires the information about the events surrounding his son’s death for closure. However, section 21(4)(d) requires that the disclosure be desirable for compassionate reasons in relation to all the circumstances relating to the request. After considering all the circumstances surrounding the request and appeals, I find that the privacy interests of other individuals, including the deceased’s spouse and her children, should not automatically yield to the compassionate reasons that may call for full disclosure to the deceased’s father.

[57]  However, as the grieving father of the deceased, I find that the appellant is entitled to disclosure of at least some portions of the records for compassionate reasons. I have carefully reviewed the records in light of the positions of the parties and the circumstances of the appeals. While I am satisfied that the ministry carefully balanced the competing interests, including the compassionate reasons for and against disclosure with respect to some information it decided to disclose, I find that, in all the circumstances, additional information should be withheld. I have highlighted this information on a copy of the severed records provided to the ministry along with a copy of this order, which I find does not fall within the section 21(4)(d) compassionate reasons exception.

[58]  Section 49 (b) of the Act  applies to the information that is subject to analysis pursuant to Part III of the Act, specifically, the deceased’s father’s own personal information where it is mixed with the personal information of other identifiable individuals, including the deceased. The section 49(b) exemption is discretionary, and permits an institution to disclose information, despite the fact that it could withhold it. An institution must exercise its discretion. On appeal, the Commissioner may determine whether the institution failed to do so.

[59]  Based on my review of the submissions, I find that the ministry’s exercise of discretion was proper with respect to the information that it decided to disclose, with the exception of certain information that I have highlighted on a copy of the severed records provided to the ministry along with a copy of this order. In my view the ministry properly considered the deceased’s father’s right to information under section 21(4)(d), the privacy interests of other individuals, the impact that the disclosure could have on the deceased’s spouse and her children and the purpose of the section 49(b) exemption. As a result, I uphold the ministry’s exercise of discretion with respect to the information that it decided to disclose, with the exception of certain information that I have highlighted on a copy of the severed records provided to the ministry along with a copy of this order.

ORDER:

1. I uphold the ministry’s access discretion with respect to the information that it decided to disclose, with the exception of certain information that I have highlighted on a copy of the severed records provided to the ministry along with a copy of this order.
2. I order the ministry to disclose to the deceased’s father the non-highlighted information in a copy of the severed records that I have provided to the ministry along with a copy of this order by sending it to him by January 19, 2021, but not before January 15, 2021.
3. In order to verify compliance with this order, I reserve the right to require the ministry to provide me with a copy of what it discloses to the deceased’s father.
4. The timelines noted in order provision 2 may be extended if the ministry is unable to comply in light of the current COVID-19 situation, and I remain seized to consider any resulting extension request.

Original Signed By		November 19, 2020
Steven Faughnan
Adjudicator