ORDER PO-1807
Appeal PA‑990288‑1
Ministry of the Attorney General
NATURE OF THE APPEAL:
The Ministry of the Attorney General (the Ministry) received a request under the Freedom of Information Act (the Act) for access to “any and all materials submitted to the Minister in support or justification of his approval of the exhumation of my grandson.” The appellant indicated that he was acting on behalf of his wife and his daughter, who is the mother of the deceased grandson.
The Ministry identified a one-page memorandum (Record 1) and a 71-page report with attachments (Record 2) as the only responsive records. Record 2 consists of memoranda, a police brief prepared by a local police service, monthly calendars, a Case History (in duplicate), medical reports and letters, a “Synopsis of Witnesses”, and witness statements. The Ministry denied access to both records in their entirety pursuant to the following sections of the Act:
section 13(1) - advice and recommendations
section 19 - solicitor-client privilege
section 14(1)(c) - investigative techniques used in law enforcement
section 21 - invasion of privacy
The appellant appealed the Ministry’s decision.
During mediation, the appellant’s daughter provided this Office with written confirmation that the appellant was acting on her behalf, and consented to the disclosure of any information relating to her or her deceased child.
The appellant also indicated that he did not require the monthly calendars (pages 14-32, 40 and 41) and agreed not to pursue access to the duplicate copy of the Case History (pages 42-48). Therefore, these records are no longer at issue in this appeal.
Also during mediation, the Ministry agreed to conduct a further search for additional responsive records. The Ministry located 25 additional pages referred to as being part of Record 2 but not originally identified by the Ministry. These pages consist of additional witness statements and various administrative forms, such as burial records, statement of live birth, death certificate, statement of death and records relating to disinterment. The Ministry issued a supplementary decision letter, denying access to these pages on the same basis as the previously identified records. In addition, the Ministry provided the appellant and this Office with an Index of Records that included a brief description and the exemptions claimed for each record.
Because some pages appeared to contain the personal information of the appellant, his daughter or his wife, the Mediator added the possible application of sections 49(a) and (b) of the Act to the scope of this appeal.
I sent a Notice of Inquiry initially to the Ministry and received representations in response. I then sent the Notice, together with a copy of the non-confidential portions of the Ministry’s representations to the appellant, who also submitted representations.
RECORDS:
Record 1 is a memorandum from Senior Counsel at the Ministry to the Director of the Crown Law Office and concerns the disinterment of the appellant’s grandson’s body.
Records 2 is a report prepared by an articling student employed by the Ministry, and also concerns the disinterment of the appellant’s grandson’s body. It consists of a cover page (page 2), a four-page memorandum (pages 3-6) from the articling student to the Senior Counsel, and a list of appendices (page 7). There are two appendices: a one-page letter and a police brief. The letter (page 8) is from Senior Counsel at the Ministry to the Director of Crown Operations, North Region, and concerns the disinterment. The police brief contains the following documents:
pages 9-13 - a cover page, investigative procedures, a table of contents and an index of documents
pages 33-38 - “Case History”
pages 39 and 49-56 - medical reports and correspondence
pages 57-59 - synopsis of witness statements
pages 60-74 - witness statements
pages 75-78 - final autopsy report.
pages 79-80 - correspondence.
pages 81-87 - additional witness statements.
pages 89-97 - burial permit, statement of live birth, medical certificate of death, statement of death, grave and burial contract, crew work card, information for public department, and correspondence.
DISCUSSION:
Personal Information
Section 2(1) of the Act defines “personal information” to mean recorded information about an identifiable individual.
All pages of the records relate to the death of the appellant’s grandson and deliberations concerning the decision to exhume his body. As such, I find that all pages contain the personal information of the deceased grandson.
In addition to the deceased grandson, I find that Record 1 and pages 10, 33, 34, 35, 36, 37, 49, 53, 54, 55, 57, 61, 62, 63, 65, 66, 67, 68, 69, 79, 80, 83, 85, 86, 87, 89, 91, 93 and 97 of Record 2 also contain the personal information of the appellant, his daughter and/or his wife.
The appellant states in his representations:
As you well know, our system of justice is based on British Common Law. I suggest that “common sense” would dictate that an 11 month-old infant has no expectation of personal privacy relating to documented information.
Section 2(2) of the Act provides that personal information does not include information about an individual who has been dead for more than thirty years. The appellant’s grandson died on November 30, 1995, so section 2(2) does not apply, and the information about the appellant’s grandson qualifies as the grandson’s personal information.
DISCRETION TO REFUSE REQUESTER’S OWN INFORMATION/SOLICITOR-CLIENT PRIVILEGE
Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 49 provides a number of exceptions to this general right of access.
Under section 49(a) of the Act, the Ministry has discretion to deny access to an individual’s own personal information in instances where the exemptions in sections 12, 13, 14, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information.
The Ministry claims that both records in their entirety are exempt from disclosure pursuant to section 19. For those pages of Record 2 that do not contain the personal information of either the appellant, his wife or his daughter, I will consider whether the requirements of section 19 have been established by the Ministry. For