Case Report – IPC interprets scope of new “compassionate reasons” exception

29 Nov

The Office of the Information and Privacy Commissioner/Ontario has released its first two orders interpreting the new “compassionate reasons” exception in section 14(4)(c) of MFIPPA and section 21(4)(d) of FIPPA.

In 2006, the government passed Bill 190, the Good Government Act. Schedule N of this omnibus bill created a new provision in both acts to create an exception to the mandatory “unjustified invasion of personal privacy” exemption to the right of public access. The carve out allows “close relatives” of a deceased individual to obtain personal information notwithstanding any invasion of privacy where disclosure is “desirable for compassionate reasons.”

MO-2237 – Test articulated

In MO-2237, dated October 19, Assistant Commissioner Beamish ordered a police services board to disclose records created in the course of an investigation into the death of the requestor’s daughter based on the new exception.

Mr. Beamish first held that the exception applies to the personal information of a deceased individual that is mixed with another individual’s personal information. This is significant because the investigations that are likely to produce records litigated under the exception will often include “mixed personal information.” In this case, the mixed personal information was provided by the deceased’s former roommate and was about her interaction with the deceased.

Mr. Beamish then gave meaning to the trigger language, “desirable for compassionate reasons.” He explained that the provision requires a “broad and all encompassing” analysis that involves consideration of both the surviving family member’s need for the information and the privacy interest of both the deceased and any other person whose personal information is mixed with that of the deceased.

Balancing these factors, Mr. Beamish ordered disclosure of most of the information in dispute. While it is not surprising that that deceased’s own privacy interests did not prevail against her mother’s interest (given they were not estranged), it is more significant that Mr. Beamish ordered disclosure of the roommate’s personal information, especially because it appears the information was partly about the roommate’s own health. He characterized the issue as “difficult” but after careful consideration held that the balance weighed in favour of disclosure.

MO-2245 – Limitations made clear

On November 9th, the IPC issued a second order interpreting the exception. It is significant for its rejection of two positions that weigh against disclosure.

First, the IPC made clear a head should readily accept the requestor’s expressed compassionate grounds:

Having been informed that disclosure of the videotape and photographs may be upsetting and disturbing, in my view the appellant is in the best position to determine whether disclosure is in her interests. In general, institutions may have an obligation to inform spouses and close family members of the nature of the information they have requested under section 14(4)(c); for example if it is particularly graphic or disturbing. However, having provided that advice, it does not then rest with an institution to make decisions on behalf of that grieving spouse or relative as to whether disclosure is in their best interests. A well-informed adult can make that decision on their own behalf.

Second, the IPC made clear that a head should not consider a disclosure to the requestor a disclosure to the world in considering the new exception. While this concept is generally accepted as a valid means of ensuring an individual’s right of privacy is not lessened because of the motivations or identity of a specific requestor, the IPC held that the new exception is unique in that it contemplates disclosure to a specific individual.

MO-2237 (19 October 2007, O.I.P.C.) and MO-2245 (9 November 2007, O.I.P.C.).

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