Investigation of the Department of National Defence’s refusal to disclose personal information of a deceased individual

Complaint under the Privacy Act (the Act)

April 29, 2024

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Description

The complainant made a request to the Department of National Defence (DND) for information about a deceased member. The complainant was the executor of the deceased’s estate, a former Canadian Armed Forces (CAF) member. DND determined that the request did not meet the criteria outlined in paragraph 10(b) of the Privacy Regulations (the Regulations) and withheld most of the information in its entirety under section 26 of the Privacy Act (the Act). DND also determined that other information did not fall under its control, had surpassed its scheduled retention period, or was available through another avenue, and as such, did not provide it to the complainant. DND did not conduct a search for any of the items specified by the complainant.

The complainant contested the decision of DND and argued that the information was required for the administration of the deceased member’s estate.

The investigation focused on two key points:

1. Whether the complainant was entitled to make a request on behalf of the deceased member under paragraph 10(b) of the Regulations for the purpose of administering the estate.
2. Whether DND had properly applied section 26 of the Act in refusing to disclose the requested information.

After review, we found that the complainant did sufficiently articulate or substantiate the precise purposes of the information to administer the estate and how the records in question could further those purposes. We also found that DND failed to conduct an adequate search for the requested records, and its blanket refusal to disclose information without confirming the existence of such records was unjustified. Finally, we noted that DND should not have deferred the complainant to another avenue without formally processing a portion of the access request.

In light of our findings, we recommended that DND:

1. Conduct a reasonable search to confirm whether or not it has any relevant records that it may validly release.
2. Provide a new response to the complainant based on the results of the search.

DND agreed to comply with our recommendations. Accordingly, the complaint is well-founded and conditionally resolved.

Takeaways

• Individuals making a request on behalf of a deceased person under paragraph 10(b) of the Regulations must demonstrate a sufficient connection between each of the records being sought and the administration of the deceased’s estate.
• In cases where individuals seek access to records that have surpassed their scheduled retention period, government institutions should conduct a search to confirm that records have been destroyed.
• Government institutions must process formal access requests under the Act, even if other informal avenues for accessing the information exist, unless the requester consents otherwise.

Report of findings

Complaint

1. The complainant alleged that the Department of National Defence (DND) contravened the access provisions of the Act by refusing to disclose any information related to their request.

Investigation

Summary of the access request and institution’s responses

2. Our investigation confirmed that the complainant made an access request for all personal information held by the CAF relating to their deceased spouse (the deceased), from the deceased’s enrollment date to the present. The complainant explained that they were the personal representative of the deceased’s estate.
3. DND wrote to the complainant and explained the right of access under the Act and the limitations under paragraph 10(b) of the Regulations. DND noted that the requested information could only be disclosed if it met either the criteria under subparagraph 8(2)(m)(i) of the Act or paragraph 10(b) of the Regulations. DND asked that the complainant clarify how the information requested was related to the administration of the estate, the specific information being sought and the purpose of obtaining that information.
4. The complainant explained the reasons why they needed the information and asserted that it was necessary for the administration of the estate. They clarified their request as follows:
   1. All documents relating to the deceased, including protected A and B documents for a specified time period, in which a person is named (the “cited individual”);
   2. All correspondences relating to the deceased, including the deceased’s Defence Wide Area Network (DWAN) email account for a specified time period, involving the cited individual;
   3. All documents relating to the deceased’s Service Income Security Insurance Plan (SISIP) Group Policy for a specified time period;
   4. All documents relating to the deceased’s Supplementary Death Benefits for a specified time period;
   5. All documents relating to the deceased’s Next of Kin forms for a specified time period;
   6. All medical records relating to the Deceased, including those relating to the deceased’s mental health issues for a specified time period;
   7. An updated version of the deceased Military Personnel Records Resumé;
   8. The deceased’s Performance Evaluation Reports for a specified time period; and
   9. All documents relating to the deceased’s military estate, including any wills or other testamentary documents.
5. DND subsequently wrote to the complainant and provided the following information:
   • For item 2, DND indicated that DWAN email user accounts are retained on the network for a period of 60 days once the member is no longer with the Canadian Forces, after which time the account and its contents are deleted permanently. As such, DND indicated that it was not able to assist with this item of the request. DND noted that if it still had access to the deceased’s email account, their information would likely be exempted under section 26 of the Act.
   • For item 3, DND indicated that the information was not under its control and referred the complainant to the Non-Public Property and Staff of the Non-Public Funds, Canadian Forces.^{Footnote 1}
   • For item 9, DND informed the complainant that the Estates and Elections Section of the Directorate of Law/Compensation, Benefits, Pensions & Estates is responsible for administering and disbursing, on behalf of the Judge Advocate General (JAG) as Director of Estates, service estate entitlements of members of the CAF who die during their service as such members.^{Footnote 2} DND indicated that the JAG is responsible for coordinating with the executor of the estate and/or family member for all legal matters regarding the estate and invited the complainant to contact the Estates and Elections Section directly.
   • For items 1, 4, 5, 6, 7, and 8, DND indicated that the matter was under review.
6. DND later responded to the complainant’s request by refusing to disclose any information related to the request:
   • For items 2, 3, and 9, DND reiterated the information it initially provided to the complainant.
   • For item 4, DND informed the complainant that this information is not related to the administration of the estate as the estate is not the beneficiary of the Supplementary Death Benefits.
   • For items 1, 5, 6, 7, and 8, DND determined that the request did not meet the criteria outlined in paragraph 10(b) of the Regulations and, as such, withheld the information in its entirety under section 26 of the Act.

Scope of the investigation

7. The complainant asserted that DND erred in relying on paragraph 10(b) of the Regulations and section 26 of the Act to justify its refusal to provide the requested information and asked for its disclosure.
8. Our investigation first considered whether the complainant was entitled to make a request under the Act for the purpose of administering the estate of the deceased under paragraph 10(b) of the Regulations.
9. Our investigation then examined the DND’s application of section 26 of the Act as a basis to refuse to disclose any information related to the request.

Analysis

Application

10. In arriving at our findings, we considered sections 3, 12, and 26 of the Act, and paragraph 10(b) of the Regulations.
11. Section 3 of the Act defines “personal information” as information about an identifiable individual that is recorded in any form but, for the purposes of sections 7, 8, and 26 of the Act, and section 19 of the Access to Information Act, does not include information about an individual who has been dead for more than twenty years.
12. Subsection 12(1) of the Act entitles an individual to request access to their own personal information under the control of a government institution.
13. The Act sets out a number of exemptions to the right of access provided under subsection 12(1). These exceptions are explained in sections 18 to 28 of the Act.
14. Section 26 of the Act prohibits a government institution from disclosing personal information about other individuals except in certain circumstances. Personal information may be disclosed if the other individuals give consent, if it is permissible under subsection 8(2) of the Act, which authorizes disclosure in limited and specific situations without consent, or if the information is already publicly available.
15. Paragraph 10(b) of the Regulations allows for the rights or actions provided for under the Act and the Regulations to be exercised or performed on behalf of a deceased person by a person authorized by or pursuant to the law of Canada or a province to administer the estate of that person, but only for the purpose of such administration.

Was the complainant authorized to make a request on behalf of the deceased under paragraph 10(b) of the Regulations?

16. The Act provides individuals with a right of access to information about themselves under the control of a government institution. The Act prohibits a government institution from disclosing personal information about other individuals except in certain circumstances. Section 8 of the Act sets out the circumstances where personal information may be disclosed without the consent of the individual to whom it relates. Individuals who have been deceased for less than 20 years enjoy the same privacy protection as when they were living. Whether an individual is living or has been deceased for less than 20 years, the same prohibitions and exceptions in the Act apply.
17. Paragraph 10(b) of the Regulations allows for someone to “step into the shoes” of a deceased individual, and exercise the rights that would otherwise be provided to the deceased by the Act, under the following conditions:
    1. The person must be the authorized administrator of the estate of the deceased; and
    2. The right being exercised must only be for the purpose of administering the estate.
18. If individuals meet the requirements of this paragraph, then they are entitled to have the same access to the personal information of the deceased as the deceased would have had; their request for access to the personal information of the deceased will be treated as though the request came from the deceased person under subsection 12(1) of the Act.

Person authorized by or pursuant to the law of Canada or a province to administer the estate of a deceased person

19. To establish that someone is a person authorized by or pursuant to the law of Canada or a province to administer the estate of a deceased person, a requester should provide written evidence of their authority to deal with the estate of the deceased.
20. The complainant provided an originally notarized copy of the Grant of Probate indicating that they are the sole executor to the estate of the deceased. The complainant also provided a copy of the deceased’s last will and testament, appointing them the sole executor and trustee of the will.
21. In this case, DND did not dispute that the complainant should be recognized as the person authorized by or pursuant to the law of Canada or a province to administer the estate of the deceased. The complainant produced a notarized copy of the Grant of Probate reflecting that they are the sole executor to the estate of the deceased. Also, DND concurred that the complainant was authorized to administer the estate of the deceased in this case. Accordingly, we are satisfied that the complainant qualifies as a person authorized to administer the estate of the deceased for the purposes of paragraph 10(b) of the Regulations.

Relates only to the administration of the estate

22. To satisfy this part of the test, individuals must demonstrate that the request relates only to the administration of the estate. To meet this requirement, individuals must demonstrate that they are seeking access to the records for the sole purpose of administering the estate.
23. The Act does not define the phrase “only for the purpose of [the] administration [of the estate]” and the limited jurisprudence on paragraph 10(b) of the Regulations does not offer much direct guidance on this issue. However, insights can be gleaned from the Macdonald v Department of National Defence^{Footnote 3} case and the Information and Privacy Commissioner of Ontario (the IPC) findings on the analogous provision, paragraph 54(a) of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).
24. Macdonald v. Department of National Defence involved a denial of records to the executors of a deceased employee’s estate. The court did not conduct a full analysis of paragraph 10(b) of the Regulations; however, it emphasized the intrusive nature of releasing such information, requiring a “good reason” and “specific statutory authority”. The cautious approach indicated a reluctance to disclose records without clear justification.
25. In Canadian Association of Elizabeth Fry Societies v. Canada,^{Footnote 4} the Court noted in paragraph 61 that paragraph 10(b) of the Regulations is “nearly similar” to paragraph 54(a) of MFIPPA.
26. The IPC has issued numerous findings that interpret 54(a), as well as the near-identical section 66(a) of the Freedom of Information and Protection of Privacy Act, and these, by extension, are helpful in interpreting paragraph 10(b) of the Regulations.
27. It is useful to compare paragraph 54(a) of MFIPPA and paragraph 10(b) of the Regulations. Paragraph 54(a) of MFIPPA states that “Any right […] may be exercised, a) if the individual is deceased, by the individual’s personal representative if exercise of the right or power relates to the administration of the individual’s estate”. Paragraph 10(b) of the Regulations allows estate administrators to exercise a deceased individuals’ rights “only for the purpose of such administration” (emphasis added). “Only for the purpose of” rather than “relates to” might suggest that paragraph 10(b) of the Regulations imposes stricter requirements than paragraph 54(a) of MFIPPA.
28. Just like the Court in MacDonald, the IPC has interpreted paragraph 54(a) of MFIPPA narrowly in view of the rights being balanced. In Order M‑1075, Assistant Commissioner Mitchinson noted that deceased individuals retain their right to personal privacy except for the administration of their estate, and therefore paragraph 54(a) of MFIPPA should be interpreted narrowly to include only that information which is required to wind up an estate.^{Footnote 5}
29. Notably, IPC findings have emphasized the need for the information being sought to support the administration of the estate: see orders MO-1256,^{Footnote 6} MO-1301,^{Footnote 7} MO-1315,^{Footnote 8} MO-1525,^{Footnote 9} and MO-2042.^{Footnote 10} IPC findings have also emphasized that the relationship between the sought information and the estate’s administration must be substantiated: see orders MO-1449^{Footnote 11} and MO-1803.^{Footnote 12}
30. In summary, several principles and themes can be identified:
    1. The privacy interests of the deceased need to be considered when granting access.
    2. The estate must demonstrate a valid purpose and requires specifying the purpose and how it is the business of the estate as opposed to a different party.
    3. There should be a clear relationship between the purpose of the estate and the sought information. The estate must show how the records in question clearly pertain to the valid purposes of the estate.
    4. Both the purpose of the estate and its relationship to the information being sought should be substantiated in order to justify the intrusion on the deceased’s privacy.
31. Accordingly, individuals making a request on behalf of the deceased under paragraph 10(b) of the Regulations must clearly specify and substantiate the purposes of the request, the validity of the purposes, and how the requested records would further the valid purposes.
32. IPC findings have found that requests “relate to the administration of the estate” where the records are:
    • sought to assist in prosecuting a civil claim brought on behalf of the estate for damages that would be recoverable by the estate rather than the surviving family members [Orders MO‑1803^{Footnote 13} and MO-2042];^{Footnote 14}
    • relevant to determining whether the estate should receive benefits under a life insurance policy [Order MO-1315];^{Footnote 15}
    • relevant to the deceased’s financial situation and allegations of fraud or theft of the deceased’s property [Order MO-1301];^{Footnote 16}
    • required in order to defend a claim against the estate [Order M‑919];^{Footnote 17} or
    • required to prepare an action on behalf of the estate for damages for injuries caused to the deceased person prior to death, where the damages would be recoverable by the estate, rather than the surviving family members [Order MO-1803].^{Footnote 18}
33. IPC findings have found that requests do not “relate to the administration of the estate” where the records are:
    • sought to support a civil action on behalf of a deceased’s estate for the wrongful death of that individual, as subsection 38(1) of the Trustee Act precludes recovery by the estate of damages for the death or loss of expectation of life by the deceased [Orders M-400,^{Footnote 19} and PO-1849];^{Footnote 20}
    • sought to support a civil claim by family members under the Family Law Act, where any damages would be paid to the family members and not to the estate [Order MO-1256];^{Footnote 21} or
    • sought for personal reasons, for examples, where the requester “wishes to bring some closure to… tragic events.” [Orders MO‑1563,^{Footnote 22} PO-3073,^{Footnote 23} and PO-3086].^{Footnote 24}

The complainant’s initial representations

34. In their complaint and submissions to this Office and to DND, the complainant explained the reasons why they were seeking the information and asked for its disclosure.
35. By way of background, the complainant reported that:
    • They were the deceased’s spouse, from whom the deceased was living separate and apart at the date of death.
    • They are the deceased’s personal representative named in the deceased’s will and have received a grant of probate.
    • The deceased’s military benefits represent a substantial portion of the deceased’s entire estate.
    • The deceased had started a relationship with the cited individual a couple of months before their death. During that period, the cited individual was named as a beneficiary to much of the deceased’s military benefits.
    • At the time the changes were made to the deceased’s military benefits, the deceased was not in a sound mental state. In the weeks leading up to their death, the deceased was on sick leave from their job as a result of their mental state.
36. The complainant claimed that that the deceased’s assets were at the forefront of the relationship. They alleged that the cited individual overbore, and unduly pressured and influenced the deceased to make the changes to their military benefits.
37. The complainant submitted that the records:
    • may be relevant to the deceased financial situation and allegations of fraud or theft of the deceased’s property; and
    • are sought to assist in prosecuting a civil claim brought on behalf of the estate for damages that would be recoverable by the estate.
38. After review, DND determined that despite being given an opportunity to do so, the complainant did not demonstrate a sufficient connection between each of the items in question and the administration of the deceased’s estate. DND was of the position that it acted in accordance with the provisions of the Act in responding to the request for access in the way that it did, and that the items in question, such as emails and performance reviews, are not necessary or relevant to the administration of the estate.
39. In our view, the complainant did initially offer sufficient evidence to demonstrate that the request relates “only for the purpose of [the] administration [of the estate]” for the second part of the test under paragraph 10(b) of the Regulations for items 4, 5, and 9. As such, we find that the complainant is entitled to “step into the shoes” of the deceased person and exercise the same right of access to the requested information under subsection 12(1) of the Act that would have been available to them.
40. For item 4, DND informed the complainant that this information is not related to the administration of the estate as the estate is not the beneficiary of the Supplementary Death Benefits. We consider that the complainant needs this information to discharge their responsibilities as the deceased’s personal representative. They need to validate that the estate is not the beneficiary of the Supplementary Death Benefits.
41. For items 5 and 9, we consider that the complainant needs this information as the authorized administrator of the estate of the deceased for the purpose of determining next of kin, inheritance rights, and service estate entitlements.
42. However, we were not convinced that the complainant had demonstrated a sufficient connection between items 1, 2, 6, 7, and 8, and the administration of the deceased’s estate.
43. In their representations, the complainant listed a large set of records being sought, gave a general overview of the situation, and then broadly described how such information may be relevant to potential actions. There may very well be more items that qualify for release in the circumstance. However, the complainant did not sufficiently articulate or substantiate the precise purposes of the estate and how each of the items in question would further those purposes.
44. For both the OPC and DND to be confident that DND may validly release very personal records, the complainant must provide representations that clearly specify and substantiate the purposes of the request, the validity of the purposes, and how each of the specified items would further the valid purposes.
45. Accordingly, we asked the complainant for a direct explanation of how the specific information being sought is necessary for the administration of the estate.
46. Finally, as for item 3, DND indicated that the information was not under its control and referred the complainant to the Non-Public Property and Staff of the Non-Public Funds, Canadian Forces. We confirmed that the information falls under control of the Canadian Forces Morale and Welfare Services for Non-Public Property and the Staff of the Non-Public Funds, Canadian Forces. As such, DND was correct in answering the way that it did.

The complainant’s additional representations

47. The complainant provided additional representations to clarify the scope of the records being sought and to explain how the records are necessary for the administration of the deceased’s estate.
48. The complainant relied upon the decision of Re Ontario (Community Safety and Correctional Services), 2012 CanLII 32952 (ON IPC)^{Footnote 25} as precedent and emphasized that the IPC stated in part that requests have been found to “relate to the administration of the estate” where the records “are relevant to the deceased’s financial situation and allegations of fraud or theft of the deceased’s property.”
49. The complainant also relied upon the decision of Hamilton-Wentworth Regional Police Services Board (Re), 2000 CanLII 21054 (ON IPC),^{Footnote 26} wherein the Adjudicator found that the records at issue related “directly to the financial situation of the deceased person and the possible misappropriation of [their] assets”. The Adjudicator therefore concluded that “it is reasonable that the type of information contained in these records would be relevant to the administration of the estate by the appellant.”

Scope of the request

50. The complainant reported that they do not wish to pursue their request for item 1 and accepted that item 3 is not under the control of DND. They also requested to revise their request for items 7 and 8 as follows:
    • The deceased’s military employment records for a specified time period.

Justification

51. In representations to the OPC, the complainant noted the importance of understanding the context and circumstances in which their request arises. They reported that they have commenced an action against the cited individual on their own behalf and in their capacity as executor of the deceased’s estate.
52. The complainant’s statement of claim includes allegations of suspicious circumstances and undue influence against the cited individual in relation to a life insurance designation (the “Designation”).
53. In summary, the complainant reported that they have significant concerns about the deceased’s mental state at the time of their death and the cited individual’s influence on them given their mental state. The complainant stated that there are suspicious circumstances surrounding the deceased’s execution of the Designation and that it was procured by the undue influence of the cited individual.
54. The complainant provided an explanation of how the specific information being sought at items 2, 6, and 7 and 8 (revised) is necessary for the administration of the deceased’s estate.
55. For item 2, the complainant submitted that, in light of the allegations regarding the cited individual’s conduct surrounding the Designation, they are concerned about the cited individual’s conduct with respect to the deceased’s financial situation generally and the impact that they may have had on same. Accordingly, the complainant considers that any correspondence between the deceased and the cited individual that may exist in the deceased’s DWAN email account is relevant to the administration of the deceased’s estate.
56. For item 6, the complainant reported that the deceased suffered from mental health issues, and they are concerned about how it may have impacted their financial situation, combined with the cited individual’s conduct. As such, the complainant contends that the deceased’s medical records are relevant to the administration of the deceased’s estate.
57. As for items 7 and 8 (revised), the complainant wished to determine whether the deceased’s performance at work, and in turn their financial situation, were impacted by the cited individual’s conduct. Accordingly, the complainant submits that the deceased military employment records from both prior to and during their relationship with the cited individual are relevant to the administration of the deceased’s estate.
58. After review, we consider that it is reasonable that the type of information contained in items 2 and 4 to 9 could be relevant to the administration of the estate by the complainant. We are satisfied that the request was made, at least in part, to help determine whether there were fraudulent activities involved in the deceased’s financial situation as a result of the deceased’s relationship with the cited individual, and to assist in the prosecution of a civil claim brought on behalf of the estate for damages that would be recoverable by the estate. Accordingly, we find that DND should have undertaken a search for the items specified in the complainant’s request to confirm whether or not it has any relevant records that it may validly release.
59. Finally, for items 2, and 9, we note the following:
    
    • For item 2, DND indicated that DWAN email user accounts are retained on the network for a period of 60 days once the member is no longer with the Canadian Forces, after which time the account and its contents are deleted permanently. As such, DND indicated that it was not able to assist with this item of the request. However, DND did not conduct a search for records to confirm whether or not it had any relevant records under its control. The complainant reported that the deceased’s DWAN email address was still active in early 2022. In cases where individuals seek access to DWAN email user accounts of departing employees, we consider that, despite the 60-day retention period, DND should conduct a search to confirm if the account and its contents have been permanently deleted. That said, even if the information did exist, it is possible that it may not fall under the control of the DND.
      
      The Act gives the right of access to personal information collected by a federal institution in direct connection with its programs or activities. The factors for analyzing whether personal information is under the control of an institution go beyond the physical location of the personal information and take into account several factors such as: whether or not the content of the information relates to an institutional matter; if the institution relied on the information to prepare government records; if the institution has a legally enforceable right of access to the records; and, whether or not the information is integrated with other information held by the institution and, if so, to what extent.
    
    
    • For item 9, DND informed the complainant that the Estates and Elections Section of the Directorate of Law/Compensation, Benefits, Pensions & Estates is responsible to administer and disburse, on behalf of the JAG as Director of Estates, service estate entitlements of members of the CAF who die during their service as such members. DND indicated that the JAG is responsible for coordinating with the executor of the estate and/or family member for all legal matters regarding the estate and invited the complainant to contact the Estates and Elections Section directly.
      
      The Act complements existing procedures for access to personal information. If there is more than one avenue for obtaining the information sought, the institution may inform the individual about other available means of access. If a formal request has been made and the requester decides to use another means to obtain information, the institution may ask the requester if they wish to discontinue the access request. Otherwise, the institution must proceed with treating a request formally.
      
      In this case, we find that DND did not relieve itself of its obligation to process the complainant’s request formally by inviting them to contact the Estates and Elections Section directly to request access to the information. DND may only discontinue an access request upon receipt of written consent from the requester.

Has DND properly applied section 26 of the Act as a basis to refuse to disclose any information related to the request?

60. In order to determine whether the exemptions claimed by DND apply, it is necessary to decide whether the records contain “personal information” and, if so, to whom it relates.
61. In this case, DND reported that it withheld the information in its entirety based solely on the text of the request. It did not conduct a search for any of the items specified by the complainant.
62. DND submitted that the records at issue contain the personal information of the deceased, including evaluations, employment history, and medical information. DND also stated that the records likely contain the personal information of other individuals.
63. There is no doubt that the records requested contain primarily the personal information of the deceased. Because we consider that the complainant stands in the shoes of the deceased for the purposes of this request, these records must be seen as containing the complainant’s information.
64. We also find that there is likely a limited amount of personal information in the records about individuals other than the deceased.
65. DND’s representations are based primarily on the assertion that the complainant has not satisfied the threshold in paragraph 10(b) of the Regulations and that they are required to seek access to the information as if they were merely a stranger to it.
66. However, having found that paragraph 10(b) of the Regulations does apply to the items specified in the complainant’s request, we are required to consider the application of section 26 of the Act since the complainant now stands in the deceased’s shoes. Also, while the complainant’s interest may, in fact, be focused on gaining access to the deceased personal information, section 26 is not intended to deny a requester access to their own information that is contained in the same records.
67. Given that subsection 12(1) of the Act gives individuals a right of access to their own personal information, the complainant is entitled not only to any personal information about the deceased in the records, but also to any information relating to them.
68. Section 26 of the Act does provide certain exceptions to the subsection 12(1) right of access. Under section 26, where a record contains the personal information of both the deceased (or the complainant) and of other individuals, DND has the discretion to deny the complainant access to that information if it determines that no exception allows for its disclosure. Accordingly, we must be satisfied that the information qualifies for exemption under section 26 of the Act.
69. As referenced earlier in this report, DND did not conduct a search for any of the items specified in the complainant’s request to confirm whether or not they have any relevant records that it may validly release. As such, without having reviewed the records at issue, we are unable to find that all the information falls under section 26 of the Act.

Conclusions

70. After review, we consider that the complainant was the executor of the estate and that they were authorized under subsection 12(1) of the Act and paragraph 10(b) of the Regulations to make a request on behalf of the deceased for the purpose of administering the estate of that person.
71. Also, we consider that DND did not properly apply section 26 of the Act as a basis to refuse to disclose all the information related to the complainant’s request.
72. Under the circumstances, we find that the complainant did not receive access personal information to which they were entitled under the Act. Accordingly, the complaint is well-founded.

Recommendations

73. In light of our finding, we recommended that DND:
    1. Conduct a reasonable search for records to confirm whether or not it has any relevant records for items 2, and 4 to 9 that it may validly release; and
    2. Process any responsive records retrieved by the tasking(s) and provide a new response to the complainant forthwith.
74. DND responded to our recommendations by advising that it was working towards providing a new response to the complainant for items 2, and 4 to 9 of the access request.
75. DND stated that although the complainant had requested to revise the text of their request for items 7 and 8, it deemed it advisable to retain the original text considering the additional information and context provided.
76. As for item 9, DND stated that there is an informal process to access this information and asked that the complainant abandon that portion of their request. DND submitted that last wills and testaments are securely stored in sealed envelopes, which are rendered invalid if opened without legal representation present, and invited the complainant to contact the Estates and Elections Section directly to obtain that information, if they hadn’t already done so. DND stated that any records related to the estate should be included in the request for file P-2024-00323 as referenced below.
77. The complainant agreed to amend their request for item 9 as follows:
    • All documents relating to the deceased’s military estate, excluding the last will and testament placed in a sealed envelope.
78. We noted that the information the complainant is seeking for item 9 falls within personal information bank DND PPE 856 and that it is very likely that JAG as the Director of Estates may hold responsive records.
79. Accordingly, we asked that DND conduct a search for records with the Director of Estates to confirm whether it holds any responsive records related to item 9 of the complainant’s request and process any responsive records retrieved by the tasking.
80. In light of the foregoing, DND advised that it would process items 2, and 4 to 9 under seven new files due to the information sought:
    • Item 2: P-2024-00319. DND reported that it would consult with IT to determine whether the DWAN account is still retrievable.
    • Items 4 and 5: P-2024-00323 for information held in personal information bank (PIB) DND PPE 836 (Unit Military Personnel Bank). DND indicated that it would conduct a specific search for the requested records and provide them in accordance with the Act.
    • Item 6: P-2024-00326 for information held in PIB DND PPE 810 (Medical Records), and P-2024-00327 for information held in PIB DND PPE 812 (Psychosocial Records). DND stated that it would retrieve and process records for mental health issues.
    • Item 7: P-2024-00337 for the Military Personnel Records Resumé.
    • Item 8: P-2024-00328 for information held in PIB DND PPE 838 (Performance Evaluation Report File).
    • Item 9: P-2024-00449 for information held in PIB DND PPE 856 (Judge Advocate General’s Files/Service Estates). Specifically, all documents relating to the deceased’s military estate, excluding the last will and testament placed in a sealed envelope.
81. Accordingly, we consider the matter conditionally resolved. This finding is conditional based on the understanding that DND will provide a new response to the complainant for each of these items under their new request number.