Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 96-1996
April 8, 1996
INQUIRY RE: A decision by the Ministry of Social Services to refuse an
applicant access to the institutional records of her deceased sister
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry
at the Office of the Information and Privacy Commissioner in Victoria on March
11, 1996 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a request for review of a
decision of the Ministry of Social Services (the Ministry) to refuse an
applicant access to the records of her deceased sister.
2. Documentation of the inquiry process
On August 17, 1995 the applicant requested from the Ministry of Social
Services copies of all "medical records, admission records, ward notes and any
other information" relating to her deceased mother and deceased sister. The
Ministry transferred the request concerning the mother to the hospital where
she died. On November 3, 1995 the Ministry denied the applicant access to the
sister's records. The applicant then wrote to my Office on December 1, 1995
and requested a review of the Ministry's decision.
3. Issue under review at the inquiry and the burden of proof
The issue under review in this inquiry is whether the records in dispute
should be withheld under section 22 of the Act. This section reads in part as
follows:
Disclosure harmful to personal privacy
22(1) The head of a public body must refuse to disclose personal information to
an applicant if the disclosure would be an unreasonable invasion of a third
party's personal privacy.
...
(3) A disclosure of personal information is presumed to be an unreasonable
invasion of a third party's personal privacy if
Section 57(2) of the Act establishes the burden of proof on the parties in
this inquiry. Under section 57(2), if the record or part of the record to
which the applicant is refused access contains any personal information of a
third party, it is up to the applicant to prove that disclosure of this
information would not be an unreasonable invasion of the third party's personal
privacy. In this case, the applicant must prove that the release of the
medical records would not be an unreasonable invasion of the privacy of her
deceased sister.
4. The records in dispute
The records in dispute consist of about sixty pages of records concerning the
applicant's deceased sister. Among other documents, these records include
clinical charts, medical certificates, correspondence between medical staff and
the mother of the child, and ward notes.
5. The applicant's case
The applicant is seeking the Ministry's records of her sister, who was
born in 1936 and died in 1943. She was in a provincial institution, Woodlands,
for most of her brief life. The applicant stated in her request for review
that she wants access to these records "as part of my family history. I cannot
understand any reason why, after such a very long period of time, this request
cannot be granted."
The applicant has further stated that both of her parents are deceased and
that her only brother, who is younger, supports her access request. In her
view, granting her access to her sister's records is not "in any way an
invasion of privacy as my sister died ... some fifty three years ago." Her
stated reason for access "is to build a family history."
6. The Ministry's case
The applicant's sister was a patient in Woodlands, which is still run
by the Ministry. It refers to the records in dispute as her "clinical file."
It includes personal information of other third parties. (Submission of the
Ministry, paragraphs 4.01 and 4.02)
The Ministry generally argues that disclosure of the records in dispute would
be an unreasonable invasion of the privacy of the deceased sister under
section 22 of the Act, especially since sections 22(3)(a) and (c) are mandatory
exceptions from disclosure. (Submission of the Ministry, paragraphs 5.04 and
5.05)
7. Discussion
Section 22(3)(a): A disclosure of personal information is
presumed to be an unreasonable invasion of a third party's personal privacy if
(a) the personal information relates to a medical, psychiatric or psychological
history, diagnosis, condition, treatment or evaluation,
The Ministry submits that the records in dispute clearly fall into this
category of "information that is highly private and personal to the
individual." (Submission of the Ministry, paragraphs 5.09) I will return to
this issue below.
Section 22(3)(c): A disclosure of personal information is presumed to be
an unreasonable invasion of a third party's personal privacy if ... (c) the
personal information relates to eligibility for income assistance or social
service benefits or to the determination of benefit levels,
The Ministry wishes to apply this subsection, because the
records relate to the third party's stay in an institution operated by the
Ministry. (Submission of the Ministry, paragraph 5.11) I find that the
records in dispute do not concern actual "eligibility for ... social service
benefits." This exception cannot be used if records in dispute simply indicate
that a third party was in fact the beneficiary of social service benefits by
being a resident of a publicly-supported institution.
Privacy rights of the deceased
I indicated in previous Orders my belief that the deceased have privacy
rights, but I have not had an opportunity to expand further on this concept,
such as the pace at which these privacy rights diminish over time. See
Order No. 27-1994, October 24, 1994; Order No. 31-1995, January 24, 1995; and
Order No. 53-1995, September 18, 1995.
In this present case, the records in dispute concern the brief life of an
institutionalized child who died more than fifty years ago. The applicant's
intentions appear to be motivated by a genuine interest in the history of
members of her family, including her mother. It is not adequate for such
purposes, as the Ministry argues, to say that she already knows the places and
dates of the birth and death of her sister: that is a rather limited
conception of the meaning of family history in today's world. (Submission of
the Ministry, paragraph 5.20) As well, such applicants may have a legitimate
interest in their family's medical history, a matter of increasing concern to
many individuals in the late twentieth century.
It is important for my decision in this case that the third party was a person
with very limited personal information. There can be nothing stigmatizing to
her memory by the release of these poignant records to a member of her family
after this span of time has elapsed. Moreover, the applicant already knows
that her sister lived in an institution.
The Ministry submitted that the practice of the institution in question is "to
hold clinical records in the strictest confidence, and third party persons
(e.g. relatives of a resident) do not have the right to review files or have
copies made. The confidentiality of a resident's file should not be
compromised." (Submission of the Ministry, paragraph 5.13; see also the
Affidavit of Gillian Chetty and Exhibit A) I am sympathetic with this point
with respect to files on current patients. But the overall argument has less
force for records that are much older, concern deceased persons, and where the
applicant is a close relative.
Regulation 3(c): The right to access a record under section 4 of the Act
and the right to request correction of personal information under section 29 of
the Act may be exercised as follows ... (c) on behalf of a deceased individual,
by the deceased's nearest relative or personal representative.
This section of the Regulation states that the right of access
to a record under the Act, with respect to a deceased individual, can be
exercised "by the deceased's nearest relative or personal representative." I
have discussed this matter in Order No. 31-1995, January 24, 1995, pp. 11 and
12 and in Order No. 53-1995, September 18, 1995, p. 6, where I accepted a
distinction between an applicant acting in the interests of the deceased person
and one acting in his or her own self-interest.
The Ministry is concerned that the applicant has not claimed or furnished
evidence that she is the nearest relative of the third party and also submits
that "she is acting in pursuit of her own interests, and not the interests of
the third party." (Submission of the Ministry, paragraph 5.19) In fact, the
applicant is the older of two surviving siblings of the deceased. The British
Columbia Information and Privacy Office's Freedom of Information and
Protection of Privacy Act Policy and Procedures Manual,
section 6.2.3, p. 5, states that when a spouse, children or parents of the deceased are
not alive, then any one of the deceased's brothers or sisters, who has attained
the age of majority, has the right of access. The brother and sister are of
equal weight and either can request access without the consent of the other.
However, in this case, the applicant is requesting the records for her own
personal reasons. While these reasons are acceptable, they do not serve the
needs of the deceased and therefore do not meet the criteria for "acting on
behalf of" or "in the best interests of" the deceased. As such Regulation 3(c)
is not a relevant consideration in this case, and the applicant should be
treated as a third party for the purpose of this particular request. This
means that the factors outlined in section 22 must be taken into consideration
in evaluating whether disclosure of the information about the sister would
constitute an unreasonable invasion of personal privacy.
The records in dispute in this inquiry contain personal and medical
information about the third party, and therefore disclosure of these records is
presumed to be an unreasonable invasion of personal privacy under
section 22(3)(a). However, section 22(3)(a) is not a prohibition against disclosure of
records; rather it is a rebuttable presumption that the release of personal
information relating to medical history may be an unreasonable invasion of
privacy.
Section 22 calls for a careful balancing of factors. Under section 22(2), I
am to consider all relevant matters, including but not limited to those
listed in section 22(2). In this case, the relevant factors (not listed in
order of importance) that I have considered are:
a) the limited personal and medical information contained in this particular
record;
b) the rich nature of the record as it reveals the relationship between the
family and the family member;
c) the fact that it is 53 years since the death of the family member;
d) the record answers specific questions about the family's medical history;
and
e) the applicant is a close living relative and has a direct interest in the
information.
Based on a careful consideration of these factors, I find that disclosure of
the personal information requested in this case would not be an unreasonable
invasion of privacy under section 22(3)(a) of the Act.
Section 36: Disclosure for archival or historical purposes
In this case, I am of the opinion that the case for disclosure to the
applicant from the "archives" of the public body can also rest on the basis of
section 36 of the Act, which reads:
36 The British Columbia Archives and Record Service, or the archives of a
public body, may disclose personal information for archival or historical
purposes if
Although my decision may have the effect of opening up access by relatives to
some currently closed records, I emphasize that public bodies still have to
make separate decisions in each case about the applicability of section 22 of
the Act. This Order does not declare "open season" on access to such sensitive
personal records.
The burden of proof
The Ministry submits that the applicant has failed to meet her burden
of proof in this case under section 22 of the Act. (Submission of the
Ministry, paragraph 5.03) I respectfully disagree in the circumstances of this
specific case. I find that disclosure of the personal information in these
records in dispute would not be an unreasonable invasion of the privacy of the
third parties who appear in the records.
8.
Order
I find that the head of the Ministry of Social Services is not required to
refuse access to the records requested by the applicant under section 22 of the
Act. Under section 58(2)(a), I require the head of the Ministry of Social
Services to give the applicant access to the records in dispute, severing only
the name of one third party as indicated on the record that I have prepared for
release.
April 8, 1996
David H. Flaherty
Commissioner