Requester v. Ministry of Consumer and Commercial Relations, 1996 CanLII 7656

ORDER P-1232

Appeal P-9500619

Ministry of Consumer and Commercial Relations

NATURE OF THE APPEAL:

The Ministry of Consumer and Commercial Relations (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to a certified copy of the birth record and marriage record for a named individual (the individual) and a certified copy of the death record for another named individual (the deceased). The Ministry located the records responsive to the request and provided partial access to the statement of death.

The Ministry denied access to the remaining information on the basis that under section 21(1) of the Act, disclosure would constitute an unjustified invasion of the personal privacy of the individuals referred to in the records. The Ministry’s decision letter also indicated that pursuant to the Vital Statistics Act (the VSA), the requester was not entitled to receive certified copies of the records. The requester, represented by counsel, appealed the denial of access.

The requester, now the appellant, is a genealogist who locates heirs to unclaimed assets and estates being administered by the Office of the Public Guardian and Trustee. In his letter of appeal, the appellant states that for the past 32 years, he has obtained copies of records filed with the Office of the Registrar General (the ORG) under the provisions of the VSA. Access to this information is critical to his business operation. The appellant advises that in 1991, the Ministry changed its policy and restricted access to the information to which he had previously enjoyed unrestricted access. The Ministry advised the appellant that authorization from next of kin was now required before the Ministry would release the information requested. The appellant has been in dialogue with the Ministry since that time.

The records at issue in this appeal are the copy of the marriage record and the portion of the ORG ledger showing the entry of birth record for the individual and the withheld portions of the statement of death for the deceased. The Ministry denies access to this information under section 21(1) of the Act.

During the course of the appeal, the appellant raised the application of the “public interest override” under section 23 of the Act in the circumstances of this appeal. He also indicated that he intended to file a separate request under the exception to the mandatory exemption in section 21(1)(e) (research).

This office provided a Notice of Inquiry to the appellant and the Ministry. Representations were received from both parties.

DISCUSSION:

PERSONAL INFORMATION

Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded information about an identifiable individual, including the individual’s name where it appears with other information relating to the individual. I will first consider the application of this definition to the withheld portions of the statement of death.

At this time, it is appropriate to note the difference between a death certificate and a statement of death. A death certificate contains limited information, is an extract from a death registration and is in Form 31. A death certificate is available to anyone upon payment of the prescribed fee. On the other hand, a statement of death, which is the record at issue in this appeal, is in Form 15, contains information about the deceased and his/her relatives and is available only to an individual entitled to receive it under the VSA. The information relating only to the deceased has already been disclosed to the appellant and it is only the additional information, not found in a death certificate, which remains at issue in this appeal.

The statement of death contains the names and birthplaces of the parents of the deceased. It also contains the name, address and signature of the individual providing the information for the statement of death (the informant) and the informant’s relationship to the deceased. As I have indicated previously, the information pertaining only to the deceased has already been disclosed by the Ministry to the appellant pursuant to section 2(2) of the Act. This section provides that personal information does not include information about an individual who has been dead for more than 30 years. The deceased died in 1962 at the age of 77 years.

In my view, given the records at issue and the particular circumstances of this appeal, it is permissible for me to make some assumptions, based on the evidence on the face of the records. These assumptions relate to the probable age of individuals and to the age beyond which a person would not reasonably be expected to live. Because privacy protection is a fundamental principle in the Act, it is appropriate to be conservative in making assumptions that would lead to disclosure of anything that could be personal information.

Had the deceased been alive today, she would have been 111 years old and the evidence shows that she has been dead for over 30 years. In my view, it is reasonable to assume that the parents have also been dead for more than 30 years. Moreover, such an assumption is, in my view, consistent with the need for conservative assumptions as mentioned above. Therefore, I find that the names and place of birth of the deceased’s parents do not constitute personal information pursuant to section 2(2) of the Act.

With respect to the information relating to the informant, it is evident from the death record that this individual is younger than the deceased. In my view, absent any evidence to the contrary, it is reasonable to expect that this individual is not dead. Therefore, the name, signature and address of the informant and the informant’s relationship to the deceased constitute the personal information of the informant.

I will now consider the information in the marriage and birth records. The marriage record contains the names, ages, religious denomination, address, place of birth and intended place of marriage of the individual and her spouse together with the names of the witnesses. This record also contains information relating to the parents of the individual and her spouse, including their names, the maiden names of the mothers and the birthplace of the fathers.

Because the copy of the birth record obtained from the registrar’s ledger is very poor, the Ministry has included a typed transcript of the original record with its representation. The birth record contains the individual’s date of birth, sex, names of parents, occupation of her father, name of attending physician and registration number. In my view, this information relates to the individual and her parents.

The appellant argues that the information on the marriage record and the birth record pertains to the individual who was married 73 years ago and who, if she were living, would be 95 years old today. The appellant states that on a balance of probabilities, the individual has been dead for more than 30 years. While I agree that certain assumptions can be made, as described above, I do not accept the blanket application of the appellant’s argument to all the information in the records. In my view, in this day and age, it is not uncommon for an individual to live to 95. Therefore, in the absence of evidence that the individual has died, I have to assume that she is still living. Further, even if I were to accept the appellant’s argument that the individual is dead, she would have to have been deceased for more than 30 years in order for section 2(2) to apply. For these reasons, I do not accept this argument for the information relating to the individual and, assuming that her spouse is in the same age bracket, for her spouse. I therefore find that the information in the marriage record which relates to the individual and her spouse qualifies as their personal information. For the same reasons, I find that the information in the birth record that relates to the individual qualifies as her personal information. However, the name of the attending physician in the birth record appears in the context of the doctor’s professional duties and therefore, falls outside of the scope of personal information.

With respect to the names of the witnesses as recorded on the marriage certificate, I have no evidence as to their possible ages before me other than the fact they acted as witnesses to the marriage of the individual and her spouse. The witnesses may be older than the couple whose marriage they witnessed or they may be younger. In the absence of any evidence, I must err on the side of caution to protect the personal privacy of identifiable individuals and I find that the names of the witnesses qualify as the personal information of those individuals.

I do, however, accept the appellant’s argument with respect to the information relating to the parents of both the individual and her spouse. I agree with the appellant, that it is reasonable to assume that the information about the parents relates to individuals who would have been much older than 95 years of age today and who, even on a conservative assessment, have likely been dead for more than 30 years. On this basis, I find that the information about the parents in the marriage record and the birth record does not qualify as personal information.

None of the information in the records relates to the appellant or his client.

In summary, I have found that the following information does not qualify as personal information:

Statement of Death: names and birthplaces of parents of the deceased.

Marriage Certificate: names and birthplaces of the fathers of the individual and her spouse, and maiden names of the mothers of the individual and her spouse.

Birth Record: names of the individual’s parents, her father’s occupation and the name of the attending physician.

No other exemptions have been claimed by the Ministry for this information. Therefore, the Ministry should disclose it to the appellant.

I have found that the remaining information does qualify as the personal information of the individual to whom it relates, as follows:

Statement of Death: the name and address of the informant and that individual’s relationship to the deceased is the personal information of the informant.

Marriage Certificate: names, addresses, occupation, age, place of birth and religious denomination of the individual and her spouse qualify as the personal information of the individual and her spouse, and the names of the two witnesses constitutes the personal information of these individuals.

Birth Record: the individual’s name, sex, date of birth and registration number.

I will now consider whether disclosure of this personal information would constitute an unjustified invasion of personal privacy.

INVASION OF PRIVACY

Once it has been determined that a record contains personal information, section 21(1) of the Act prohibits the disclosure of this information unless one of the exceptions listed in the section applies. Four of these exceptions may be relevant to the circumstances of this appeal - sections 21(1)(c), (d), (e) and (f). I will first consider the application of the exception in section 21(1)(c), which states as follows:

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

personal information collected and maintained specifically for the purpose of creating a record available to the general public.

The appellant states that the information in certified copies of birth, death and marriage certificates is collected and maintained specifically for the purpose of creating a record available to the public, pursuant to sections 2 and 3 of the VSA. The appellant also refers to sections 40 and 41 of the VSA which state as follows:

40(1) Upon application and upon payment of the prescribed fee, any person who furnishes substantially accurate particulars, and satisfies the Registrar General as to his reasons for requiring it, may obtain from the Registrar General a birth certificate in respect of any birth of which there is a registration in his office.

(2) Upon application and payment of the prescribed fee, any person may obtain from the Registrar General a death certificate in respect of any death of which there is a registration in his office.

(3) Upon application and upon payment of the prescribed fee,

(a) one of the parties to the marriage;

(b) a parent of one of the parties;

(c) a child of the marriage;

(d) any person with the approval of the Registrar General

may obtain from the Registrar General a marriage certificate in respect of any marriage of which there is a registration in his office.

41(1) No certified copy of a registration of birth, death or still-birth shall be issued except to a person authorized by the Registrar General or the order of a court and upon payment of the prescribed fee.

(2) No certified copy of a registration of marriage shall be issued except to one of the parties to the marriage or a person authorized by the Registrar General or the order of a court and upon payment of the prescribed fee.

The appellant also refers to section 44(1) which provides that upon application and payment of the prescribed fee, any person who satisfies the Registrar General as to his reasons for requiring it, may have a search made for registration including any birth, death and marriage. In this regard, I note the provision in section 44(3), which indicates that the only information given upon a search under section 44(1) is as to the existence or otherwise of the registration and the registration number, if required.

The appellant submits that he has routinely obtained certificates and certified copies and had searches made over the past 32 years with the knowledge and approval of the Registrar General. The appellant states that since 1991, access has been increasingly restricted to the extent that he has not been able to access the certificates that he requires to carry on his business. Since late 1991, the Registrar General has been requesting authorizations signed by the next of kin in all instances. The appellant indicates that he has provided the authorization from the next of kin where possible but that in many instances, the searches at ORG are being undertaken with a view to locating the next of kin. The appellant submits that there has been no substantial change in the provisions of the VSA which would justify the Ministry’s reversal of position and that restrictions imposed on his access amount to a denial of access.

The Ministry agrees with the appellant, that in the past, the ORG has allowed access to restricted records to certain individuals, including the appellant, and without requiring written authorization from the entitled person. The Ministry states that beginning in 1991, this policy was changed to require written authorization from everyone and that as of 1994, there are no exceptions. All persons, including lawyers acting on behalf of a client, are required to comply with the policy. The Ministry adds that with the enactment of the Act, there has been a greater concern with privacy protection and the changed policy reflects this concern and is more consistent with the principles of the Act.

The Ministry submits that section 21(1)(c) of the Act does not apply as the personal information has not been collected and maintained specifically for the purpose of creating a record available to the public. The Ministry submits that the personal information is available only to a person who has provided written authorization from the next of kin and thereby received the approval or authorization of the Registrar General, as required by the VSA.

While I understand the appellant’s concerns about the change of policy, it is the Registrar General who is charged with determining what he requires to “satisfy the Registrar General” or “obtain the approval ...”. The ORG has decided to make access under the VSA more restricted, in accord with the principles of the Act. In this regard, the ORG requires written authorization from the next of kin. In my view, I do not have jurisdiction to make a determination on the appropriateness of this or the change in policy and/or practice; I can only make a finding under the Act.

In the present case, I must determine whether the personal information is collected and maintained specifically for the purpose of creating a record available to the general public. In my view, the key words are “available to the general public”.

I have reviewed the representations of the parties. In my view, the information is not collected and maintained specifically for the purpose of creating a record available to the general public. The information is collected pursuant to the VSA and it is clear that except for a death certificate, restrictions apply to access to other records under the VSA.

As I have indicated previously, under section 40(2) of the VSA, death certificates are available to anyone upon payment of the prescribed fee. A death certificate contains limited information, is an extract from a death registration and is on Form 31. In my view, this type of record would fall within the exception in section 21(1)(c).

However, the record at issue in this appeal is a statement of death which is only available to an individual entitled to receive it under the VSA. Similarly, marriage certificates and birth certificates are only available to entitled persons. A person seeking a copy of a marriage certificate must obtain “the approval of the Registrar General” while a person requesting a copy of a birth certificate must “satisf[y] the Registrar General as to his reasons for requiring it”. Further, certified copies can only be issued if “authorized by the Registrar General or the order of a court”. In my view, the provisions of the VSA are clear in that while access is permitted, it is limited and restricted, at the discretion of the Registrar General, to those individuals who are entitled to receive the information. I find therefore, that section 21(1)(c) is not applicable to the information at issue in this appeal as it is not information that was collected and maintained specifically for the purpose of making it available to the general public.

Section 21(1)(d)

This section of the Act provides as follows:

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

under an Act of Ontario or Canada that expressly authorizes the disclosure.

The appellant submits that the VSA expressly authorizes disclosure of the personal information in the records. The appellant states that disclosure of personal information to him was authorized for a period of over 32 years and that there has been no substantial change to the legislation during that period.

The Ministry explains that under the VSA, there is a uniform system of registration for all births, marriages, deaths, still-births, adoptions and changes of name that occur in Ontario. The Ministry states that requests for disclosure are processed in accordance with the provisions of the VSA and the entitlement policy established under it.

I have carefully reviewed the representations of the parties together with the evidence before me. As I have indicated above, while access may be available for personal information registered under the VSA, this is at the discretion of the Registrar General. Therefore, disclosure under the VSA cannot be said to be expressly authorized where it remains discretionary. I find that, in the circumstances of this appeal, disclosure of the information that remains at issue in this appeal is not authorized under the VSA. Section 21(1)(d) does not apply in the circumstances of this appeal.

Section 21(1)(e)

Although the appellant had indicated that he was filing a separate request under section 21(1)(e), he has made submissions on this section and since it is an exception to a mandatory exemption, I will address these representations.

Section 21(1)(e) of the Act reads as follows:

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

for a research purpose if,

(i) the disclosure is consistent with the conditions or reasonable expectations of disclosure under which the personal information was provided, collected or obtained,

(ii) the research purpose for which the disclosure is to be made cannot be reasonably accomplished unless the information is provided in individually identifiable form, and

(iii) the person who is to receive the record has agreed to comply with the conditions relating to security and confidentiality prescribed by the regulations.

Section 21(1)(e) requires that all three elements set out above be satisfied in order for it to apply.

The appellant submits that the research is necessary for the purpose of locating next of kin and that it is consistent with the purpose of collecting and maintaining centralized public records under the VSA. The appellant submits that the personal information in individually identifiable form (i.e. certified copies of the certificates) are necessary for the purpose of proving his claims with the Public Guardian and Trustee and/or the Court. The appellant states, that in light of the nature of his business, he has asked the ORG to consider special access to the records, and that he is willing to comply with reasonable terms and conditions relating to security and confidentiality.

However, the appellant has not provided any evidence to show how his business purpose in locating heirs to estates is consistent with the “reasonable expectations of disclosure” under which the personal information was provided, collected or obtained under the VSA, as required by section 21(1)(e)(i) of the Act. Nor has the appellant provided me with evidence of an agreement submitted to the Ministry, as required by section 21(1)(e)(iii). If such an agreement in Form 1, as required by the Regulations under the Act, is submitted and denied by the Ministry, the appellant has the right to file an appeal with this office. As I have indicated above, all three elements of section 21(1)(e) must be met in order for the exception to apply. As I have just found that two of these have not been met, I find that section 21(1)(e) does not apply.

I will now look at the possible application of section 21(1)(f) which allows disclosure of personal information if the disclosure does not constitute an unjustified invasion of personal privacy.

Section 21(1)(f)

This section of the Act reads as follows:

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

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

I have found that the personal information that remains at issue in this appeal relates to the informant, the individual and her spouse and the witnesses.

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 personal privacy. Section 21(3) sets out cases in which disclosing personal information is presumed to be an unjustified invasion of personal privacy. If one of the presumptions applies, the Ministry can disclose the personal information only if it falls under section 21(4) or if section 23 applies to it.

If none of the presumptions in section 21(3) apply, the Ministry must consider the application of the factors in section 21(2), as well as all other circumstances that are relevant in the circumstances of the case.

The Ministry has raised section 21(2)(h) and the presumptions in sections 21(3)(a), (d) and (h). The appellant has raised sections 21(2)(d), (f), (g) and (i). These sections of the Act read as follows:

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

(d) the personal information is relevant to a fair determination of rights affecting the person who made the request;

(f) the personal information is highly sensitive;

(g) the personal information is unlikely to be accurate or reliable;

(h) the personal information has been supplied by the individual to whom the information relates in confidence; and

(h) the disclosure may unfairly damage the reputation of any person referred to in the record.

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;

(d) relates to employment or education history;

(h) indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations.

The Ministry submits that the marriage record contains information about the sexual orientation, racial or ethnic origins and religious beliefs of the individual and the spouse under section 21(3)(h) and the occupations shown on the marriage record fall within the ambit of section 21(3)(d).

I agree that portions of the marriage record do contain information about racial or ethnic origin, religious beliefs and employment history of the individual and her spouse. I am satisfied that this information falls within the ambit of the presumptions under sections 21(3)(d) and (h). I find therefore, that disclosure of this personal information would constitute a presumed unjustified invasion of the personal privacy of the individual and her spouse. None of the factors in section 21(4) apply to this information. Thus, this information is exempt under section 21(1) of the Act.

I will now consider the relevance of the factors in section 21(2) raised by the parties to the remaining information which includes the age and address of the individual and her spouse on the marriage record, the date of birth and sex of the individual on the birth record and the name, address and relationship of the informant to the deceased on the death statement.

The appellant has referred to sections 21(2)(f), (g) and (i), all of which weigh in favour of privacy protection, by stating that these sections are not relevant considerations.

The appellant has also raised the application of section 21(2)(d) to the personal information in the records. The appellant submits that the information is necessary to locate and prove the claims of next of kin to the Public Guardian and Trustee or to the Court. The appellant states that disclosure of this information is relevant to establishing the rights of individuals pursuant to the Succession Law Reform Act. Section 21(2)(d) applies when disclosure of the personal information is relevant to a fair determination of rights affecting the person who made the request. The appellant has not established that disclosure is relevant to a fair determination of his rights and therefore, I find that section 21(2)(d) is not a relevant consideration.

The appellant has also raised the diminishing privacy rights of a deceased individual as an additional unlisted factor to be considered under section 21(2). Section 21(2) requires a head to consider all the relevant circumstances in determining whether disclosure of personal information constitutes an unjustified invasion of personal privacy. This section lists some of the criteria to be considered; however, the list is not exhaustive.

As indicated above, the appellant is asking me to assume that the individual, who would be 95 years old today, is likely dead. The appellant has raised the concept of diminishing privacy rights as a factor in the circumstances of this case. The appellant submits that, assuming the individual is dead and has been dead for less than 30 years, the privacy rights of the individual may be said to diminish over time. In this regard, the appellant refers to Orders P-679 and M-51 of the Commissioner where it was determined, in the particular circumstances of those appeals, that the privacy rights of the deceased individuals diminished over time and therefore, disclosure of their personal information did not constitute an unjustified invasion of personal privacy.

In Order M-51, Commissioner Tom Wright determined, in the circumstances of that case, that “disclosure of personal information which might have constituted an unjustified invasion of personal privacy while a person was alive, may, in certain circumstances, not constitute an unjustified invasion of personal privacy if the person was deceased”. In that case, the mother of the deceased sought access to information surrounding the circumstances of the death of her son in a fire.

In Order P-679, Inquiry Officer Anita Fineberg found that consideration of the diminishing privacy rights of an individual who had been dead for less than 30 years, was relevant in her decision to order disclosure of the record. In that case, the daughter, who had recently learned the identity of her biological father, sought access to information relating to her father’s detention in a particular correctional facility.

In my view, the overriding difference between those cases and the subject appeal is that the individuals about whom the information was being sought were definitively dead. In the present case, there is no evidence before me that the individual is dead. Therefore, in my view, the factor of diminishing privacy interest is not relevant in the circumstances of this appeal.

Where the records sought contain the personal information of individuals other than the appellant, the only way that such a record can be disclosed is if I find that disclosure would not constitute an unjustified invasion of the personal privacy of these individuals. I have considered the appellant’s representations together with all the relevant circumstances of the case. I have not found any factors that favour disclosure of the records. Accordingly, in the absence of factors favouring disclosure, I find that disclosure of the records would constitute an unjustified invasion of personal privacy and section 21(1) applies.

PUBLIC INTEREST IN DISCLOSURE

The appellant submits that there is a public interest in disclosure of the records. I will now consider whether section 23 of the Act applies to the records. This section of the Act reads as follows:

An exemption from disclosure of a record under sections 13, 15, 17, 18, 20 and 21 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption. (emphasis added)

There are two requirements contained in section 23 which must be satisfied in order to invoke the application of the so-called “public interest override”: there must be a compelling public interest in disclosure and this compelling public interest must clearly outweigh the purpose of the exemption.

With his representations, the appellant has included a copy of the 1993 Report of the Auditor General with respect to the Administration of Trusts and Estates by the Public Trustee of Ontario. The appellant points to the heavy workload, delays in the administration and distribution of estates, and the need to develop procedures to encourage the search for heirs including the out-sourcing of such work, all of which forms part of the report. The appellant submits that there is a public interest in the proper administration and distribution of estates and that, in order for beneficiaries to be able to prove their claim, there must be unencumbered access to the records maintained by the ORG.

The appellant states that during the last 32 years, he has successfully located and proved the claims of at least 3000 claimants and that these are individuals who might otherwise never have known or been able to prove their claim. The appellant submits that there is a compelling public interest involved in obtaining access to the records for the purpose of locating next of kin and assisting them to prove their claims.

In his representations, the appellant has included information about his arrangements with other provinces, including Manitoba, Saskatchewan, Alberta and British Columbia. The appellant states that in Manitoba, disclosure of “certain vital event” information to third party requests to facilitate estate settlements to rightful heirs is considered to be in the public interest. The appellant states that he has recently entered into a written agreement with British Columbia for access to information as a recognized genealogical researcher. The appellant points out that Alberta has Freedom of Information and Protection of Privacy legislation while the other provinces have Privacy statutes.

The Ministry denies that a compelling public interest exists in the disclosure of the records. The Ministry submits that the appellant’s interest in disclosure is a private commercial interest. The Ministry’s position is that fundamental protection provided to individuals under section 21(1) should not be overlooked to advance the private interests of the appellant. The Ministry concedes that the appellant may well be providing a service to beneficiaries who might not otherwise have known about their inheritance but this should not be done by accessing confidential government records.

I have reviewed the representations of the parties. I appreciate the arguments put forth by the appellant. I agree that the appellant is likely providing a useful service to many individuals who may otherwise not have known about their inheritances. I also agree that this private enterprise may result in reducing the workload and burden of the Office of the Public Guardian and Trustee. However, in my view, these factors are not sufficient to establish a compelling public interest in disclosure of the information at issue to the appellant, whose interest remains essentially private. Therefore, I find that section 23 is not applicable in the circumstances of this appeal.

I have highlighted the portions of the records that I have found to be exempt under section 21(1) of the Act on the copy of the records provided to the Ministry’s Freedom of Information and Privacy Co-ordinator. The highlighted parts should not be disclosed. I will order the Ministry to disclose the remaining non-highlighted portions of the records to the appellant.

ORDER:

1. I uphold the Ministry’s decision to deny access to the portions of the records which are highlighted on the copy provided to the Freedom of Information and Privacy Co-ordinator with a copy of this order.

2. I order the Ministry to disclose the remaining (non-highlighted) portions of the records to the appellant on or before August 2, 1996.

3. In order to verify compliance with the terms of this order, I reserve the right to require the Ministry to provide me with a copy of the records which are disclosed to the appellant pursuant to Provision 2.

Original signed by: July 18, 1996

Mumtaz Jiwan

Inquiry Officer