In their ongoing attempt to find out what they believe happened
to their son, John and Gloria Connelly have used Ontario's access
to information laws to piece together the details the
might help get his case re-opened.
They requested the 911 phone call because this would be one
more piece in the puzzle. When their son's neighbour called
911 that morning in December of 2001, what exactly was said to the
911 operator?
They only got back a portion of the call: The
911 operator relaying to the police dispatcher that they had a possible
jumper.
As it stands, the Connelly's cannot access that part of
the conversation.
This is but one example of their frustration
with Ontario's privacy
laws. As it stands, the Connelly's cannot access the information
that will help gather the details surrounding their son's death
for 30 years.
Bob McKeown interviewed Ann Cavoukian,
Ontario's Information and Privacy Commissioner to find out
more about Ontario's privacy laws and
Bill
190, which awaits 2nd
reading in Ontario's legislature.
_____________________________________________________________________
INTERVIEW WITH ANN CAVOUKIAN
Ann Cavoukian is Ontario's
Information and Privacy Commissioner.
WHAT IS THE LEGISLATION THAT DETERMINES
WHAT INFORMATION CAN BE RELEASED IN THE SORT OF CASE WE'VE BEEN TALKING
ABOUT? PARENTS WHO HAVE UNANSWERED QUESTIONS ABOUT THE DEATH OF A
TWENTY-TWO YEAR OLD SON?
Ann Cavoukian : In Ontario, we have the
Freedom
of Information and Protection of Privacy Act and its municipal counterpart,
the Municipal
Freedom of Information and Protection of Privacy Act and FIPA and basically,
it says you, the government or the police, are not permitted to disclose
personal information if it would constitute an unjustified invasion of privacy
to the individual involved, in this case, the deceased.
Unfortunately, the way the law is written, there
is no flexibility in terms of the discretion with which information can be
released. So, the law basically says you, you are not allowed to release
information about a deceased individual that was collected, compiled, during
an investigation.
Bob McKeown: SO, IN GENERAL, IF YOU'VE GOT PARENTS WHO ARE TRYING TO UNDERSTAND
HOW AND WHY A SON DIED, IF THAT SON IS OF THE AGE OF MAJORITY, THE POLICE
ARE NOT LEGALLY REQUIRED TO RELEASE THAT INFORMATION?
Ann Cavoukian : They're not legally permitted to release
the information, unfortunately, unless the parents have been identified,
as the personal representative of the deceased individual in his Will, their
executor which is, you know, unlikely. There is no ability for the police
to release the information, even if they wanted to. And we have tried. We've
tried this in an order and the courts basically said no. The law is firm,
you can't release the information.
Bob McKeown: SO, GOING BACK TO THE FRAMING OF THIS LEGISLATION IN THE FIRST PLACE, WHY
WOULD IT HAVE BEEN SO CUT AND DRIED? NO INFORMATION BECAUSE IT CONSTITUTES
AN INVASION OF PRIVACY?
KEY POINT
"This is not something done by design. It's a flaw.
And that's why we have a petition, the government, to say amend the law. It's
unfair to distraught parents and relatives of a deceased individual who want
to access some information to puzzle together the answers relating to the death."
- Ann Cavoukian
Ann Cavoukian : In these circumstances relating to a deceased
individual, it was not by design. We went back and looked at the legislative
history of the law. We looked at the Williams Commission Report which led
to the creation of Freedom of Information and Protection and Privacy Act
in Ontario. There was nothing that spoke to this issue. So, this is not something
done by design. It's
a flaw. It was an oversight. It just wasn't thought through.
And that's
why we have a petition, the government, to say amend the law. It's
unfair to distraught parents and relatives of a deceased individual who want
to access some information to puzzle together the answers relating to the
death. They're traumatized. They can't get anything.
Bob McKeown: HOW COMMON A PHENOMENON IS THIS IN YOUR EXPERIENCE, THAT PARENTS ARE IN THIS
POSITION OF NOT KNOWING AND NOT BEING ABLE TO GET THE FACTS THAT MIGHT HELP
THEM?
Ann Cavoukian : Well, it happens frequently because if their
child's death, or anyone's
death, was an accident or highly unexpected and the police are investigating,
you can imagine a spouse, a partner, a child, all of a sudden they've
died and you need to find answers. You're desperate for answers.
So,
you go to the police who are conducting an investigation and they say they
can't give you anything. You appeal the decision to my office and we,
very regretfully, have to say that. Because we have already attempted to
find a way to exercise some discretion and the courts have said no. It's
firm. There's no wiggle room here. It's a very unfortunate situation.
And that's what led us in our 1999 annual report to write
to the government and say please, amend this legislation. We did a survey,
actually, of appellants who had come to us under these circumstances and
we have to say no. We surveyed police forces across the province and municipal
organizations to get their views on this. What is the fairness, what should
happen? And also people in the field of bereavement, grief counselors, psychologists,
everyone. The consensus was overwhelming.
This information has to be disclosed
to these relatives who are just so traumatized by the death, and then you
further add injury to that by not giving them any information. You compound
the problem considerably.
Bob McKeown: YOU SAY IT WAS AN OVERSIGHT, MEANING THAT WHEN THE LEGISLATION WAS FRAMED
IN THE FIRST PLACE NO ONE THOUGHT WHAT IF? WHAT IF A PARENT NEEDS TO KNOW
FOR ONE REASON OR ANOTHER WHAT HAPPENED TO THEIR CHILD?
Ann Cavoukian : I don't think it's possible that
they could have thought that because if you look at laws that have been introduced
since the time of our legislation - which came into effect in nineteen eighty-eight – other
jurisdictions, Alberta, Manitoba, PEI, Saskatchewan, all of their legislation
which followed ours, does allow the exercise of discretion in terms of the
disclosure of this personal information. So, there's a greater understanding
subsequently. Unfortunately, our law is firm and it has to be amended.
BILL 190
Proposed amendments to the Freedom of Information and
Protection of Privacy Act
1:
Subsection 2 (1) of the
Freedom of Information and Protection
of Privacy Act is amended by adding the following definitions:
"close relative" means a parent, child, grandparent, grandchild, brother, sister,
uncle, aunt, nephew or niece, whether related by blood or adoption; ("proche
parent")
"spouse" means,
(a) a spouse as defined in section 1 of the
Family Law Act , or
(b) either of two persons who live together in a conjugal relationship outside
marriage. ("conjoint")
Subsection 21 (4) of the Act is amended by striking out "or" at the
end of clause (b), by adding "or" at the end of clause (c) and by adding the
following clause:
(d) discloses personal information about a deceased individual to the spouse
or a close relative of the deceased individual, and the head is satisfied that,
in the circumstances, the disclosure is desirable for compassionate reasons.
See Bill
190
SO, IF
BILL
190 PASSES, WHAT WOULD THE
PROCEDURE BE FOR GETTING INFORMATION ABOUT THE DEATH OF A CHILD WHO IS
OF THE AGE OF MAJORITY?
Ann Cavoukian : Okay, so we have to underscore, if it
passes, so the House will resume sitting in the fall, Bill 190 will be
considered - and I can't imagine that
it won't be passed - then after its passage, anyone could apply to
the police for the personal information of their deceased relative. In
fact, the language will be a spouse or a close relative can request this
information and the police can exercise their discretion. They can examine
the facts and if, for compassionate purposes, they decide that the information
should be released, then the individuals be permitted to have their information.
Bob McKeown: AND IF THE POLICE, IN THEIR DISCRETION, DECIDE, NO, WE DON'T STILL
WANT TO RELEASE IT?
Ann Cavoukian : Then those individuals, if it's a parent
or a spouse, they can appeal the decision to my office. And that's
a big difference. I mean, they can appeal the decision now, but…there's
no opportunity for us to exercise any discretion either, or to review the
decision to see if discretion was exercised. So, they will have that, an
additional recourse in terms of appealing to our office.
Bob McKeown: IS THERE CURRENTLY A STATUTE OF LIMITATIONS
ON HOW LONG THIS MUST REMAIN SECRET?
Ann Cavoukian : Well, thirty years is the period of time
where a deceased individual's
personal information is protected, their right to privacy is protected.
Bob McKeown: IS THERE A RATIONALE BEHIND THAT THIRTY-YEAR PERIOD?
Ann Cavoukian : Well, you can imagine a situation where
someone had a very traumatic life, or, and it's circumstances around their
life, if revealed publicly may cause, may have caused them embarrassment,
or their family embarrassment. So, the theory behind the thirty years is
that someone's personal information
remains private for thirty years to…extending them some protection,
in that regard.
Bob McKeown: IN THIS CASE THE CONNELLY FAMILY IS SAYING –THIS
IS PREVENTING EMBARRASSMENT TO THE TORONTO POLICE DEPARTMENT.
Ann Cavoukian : What was never contemplated, in my view,
to prevent close relatives from accessing the information? They're
not going to be out there broadcasting it or causing embarrassment to the
individual, the deceased.So, this is one of the unintended consequences
of this legislation. It wasn't thought
through. I don't think this outcome was contemplated. And clearly,
we have to consider compassionate reasons for the disclosure of this information.
Bob McKeown: THE FAMILY HAS IN FACT RECEIVED SOME POLICE DOCUMENTS WHICH ARE HEAVILY REDACTED.
SO, WHAT IS THE INFORMATION THAT IS ALLOWED TO THEM THAT THEY CAN READ IN
THESE DOCUMENTS, AND WHAT'S BEEN TAKEN OUT?
Ann Cavoukian : What the law says, if there is personal
information about an identifiable individual that has been compiled as
a result of an investigation conducted by the police, that information
cannot be disclosed to anyone unless it's
the personal representative, the executor.
