Order 98-004: Summary
DATE: November 25, 1998
PUBLIC BODY: Alberta Family and Social Services
FOIP REQUEST: The applicant requested access to the complete record of a deceased sister who had been receiving assistance under the Supports for Independence/Assured Income for the Severely Handicapped (SFI/AISH) Program and had died while in the care of the Public Guardian. The applicant had been the deceased's guardian and trustee for a time and had informally administered her estate. Family and Social Services (F&SS) refused to disclose the file on the grounds that the exception for harm to personal privacy and the exception for privileged information applied. The applicant asked the Information and Privacy Commissioner to review the matter.
ISSUES: The applicant submitted that the file should be disclosed because, as his sister's personal representative, he was exercising his sister's right of access. F&SS submitted that the applicant had not been properly appointed as his sister's personal representative and was not entitled to exercise the deceased's rights and powers under the FOIP Act. The applicant also submitted that the records should not be withheld under the exception for harm to personal privacy because their disclosure was necessary to subject the activities of F&SS to scrutiny and to a fair determination of the applicant's rights. F&SS argued for the privacy rights of a deceased person.
DECISION AND REASONS:
- In this Order, which provides the first consideration of the exercise of rights under the FOIP Act by another person, the Commissioner found that the public body had correctly refused the applicant the status of personal representative. A "personal representative" is someone who has the authority to administer a deceased individual's estate (section 79(1)(a)). The applicant had not provided any evidence of his legal authority to administer his sister's estate.
- The Commissioner decided, according to criteria set out in Orders 96-017 and 96-020, that the exception for solicitor-client privilege applied to some of the records in the file, but not to records that did not involve the seeking or giving legal advice. In certain cases where legal privilege had been established, the Commissioner found that F&SS had not exercised its discretion properly when it decided to withhold records and ordered F&SS to reconsider that decision. In some instances the privilege had been waived when documents had been provided to the public body.
- The Commissioner found that F&SS had not correctly applied the exception for harm to personal privacy to some of the records. This exception could not be applied to these records because they did not contain the personal information of a third party.
- The Commissioner considered in detail the Department's application of the provisions of section 16 to the other records and generally agreed in part with the decisions made by F&SS. He defined the terms of section 16(2)(c), noting that, for personal information to fall under this provision, a connection or association must be established between the person's qualification to receive income assistance or social service benefits and the determination of how much benefit the person receives.
- The Commissioner then reviewed the relevant circumstances that F&SS had taken into consideration when determining whether disclosure would be an unreasonable invasion of the deceased's personal privacy. Referring to Order 97-002, the Commissioner decided that section 16(3)(a), which allows for consideration of whether disclosure is desirable for the purpose of subjecting the activities of the public body to public scrutiny, was applicable. He found this to be the case for reasons other than those advanced by the applicant. The Commissioner decided that section 16(3)(f), which allows for consideration of whether personal information was supplied in confidence, applied in part. He rejected the argument that legislation requiring F&SS to maintain the confidentiality of the personal information in question created a presumption that the information was supplied in confidence. Instead he considered whose personal information was involved, who had supplied it, to whom it was supplied, and under what circumstances.
- The Commissioner then considered other relevant circumstances. Circumstances which weighed in favour of disclosing other records included the blood relationship between the applicant and the deceased, the applicant's role over several years as his sister's legal guardian and trustee, the fact that the applicant had requested that he discontinue in the role of guardian and trustee because of ill health, and the fact that the applicant had continued to receive monthly reports about his sister's condition after being removed as trustee. The Commissioner also found it relevant that the applicant could obtain the records by other means, and that some of the records in question had been supplied by the applicant or the applicant's solicitor.
The decision to withhold some of the records in the file was upheld but F&SS was ordered to disclose other records.
SECTOR: Government - Departments