BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Whether TUSLA was justified in deciding to partially refuse access to records relating to the applicant and her son on the grounds that they concerned information obtained in confidence which could reasonably be expected to reveal the identity of the informant.

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 4 December 2014, the applicant made a request to TUSLA for any information held by it concerning herself and her son. TUSLA identified 20 records as relevant to the request, and it decided to grant full access to records 1 to 12, and 15 to 20, inclusive. It granted partial access to records 13 and 14. On 5 February 2015, the applicant sought an internal review of the decision to partially release records 13 and 14. The decision was upheld by TUSLA on internal review. On 19 February 2015, the applicant sought a review of TUSLA's decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant records, to the correspondence between the applicant and TUSLA, to the correspondence between the applicant and this Office, and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is concerned solely with whether TUSLA was justified in deciding to allow only partial access to records 13 and 14.

Finding

As a preliminary point, it should be noted that while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is limited.

The records under consideration concern an anonymous letter sent to TUSLA, which alleged that the applicant was not providing adequate care to her children. TUSLA seeks to rely upon section 42(m)(i) of the FOI Act to justify its decision to partially release records 13 and 14 to the applicant. This states that

"This Act does not apply to...
(m) a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of --
(i) the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession..."

This provision aims to ensure that members of the public are not discouraged from cooperating with agencies engaged in the enforcement or administration of the law, by providing information which might assist such agencies to perform their functions more effectively. Records containing such information are excluded from the provisions of the FOI Act.

For section 42(m)(i) to apply, three specific requirements must be met. The first requirement is that the release of the withheld information could reasonably be expected to reveal the identity of the source of the information. The second is that the information must have been given to the FOI body in confidence. The third is that the information was supplied to the FOI body in relation to the enforcement or administration of the law. I will examine whether TUSLA has satisfied each of these requirements in turn.

First requirement

I note that the original of record 13 was a handwritten letter. TUSLA furnished the applicant with a typed copy of this letter, having omitted certain information. The applicant seeks the release of the original handwritten version. However, I am satisfied that, were the original version to be disclosed, it could reasonably be expected to reveal, or lead to the revelation of, the identity of the source of information to TUSLA. Furthermore, I am satisfied that the withholding of certain specific information from records 13 and 14 was justified, in accordance with this requirement. The applicant has argued that while she accepts the need to "blank out" the personal details of the complainant, the remainder of the letter should be released. In this regard, I am satisfied that the information redacted by TUSLA could, if released, lead to the revelation of the identity of the source information.

Second requirement

I consider that it is necessary for officials of TUSLA, in the course of their duties, to be in a position to receive information in confidence from members of the public. I recognise that much of the information that TUSLA receives is given in confidence by people who do not wish to be identified. I believe it is reasonable to consider that, without an assurance or understanding that information being provided was done so in confidence, such persons might be reluctant to furnish relevant information in future.

Having considered the contents of the relevant records, I am satisfied that the information was provided in confidence, and I find therefore that the second requirement of section 42(m)(i) has been met.

Third requirement

The Child Care Act 1991 imposes a duty on TUSLA to promote the welfare of children who are not receiving adequate care and protection. Section 3(2) of the 1991 Act states that TUSLA "shall take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area". Accordingly, I accept that the information was given in relation to the enforcement or administration of the law, notwithstanding the fact that TUSLA subsequently concluded that the informant's concerns appeared to be unfounded.

I am satisfied that the FOI Act does not apply to the record on the basis of the above. However, I note the applicant's contention that the information was provided to TUSLA maliciously, and indeed in one of the records (which was released to the applicant), TULSA acknowledged that this may have been the case. Nevertheless, I accept that TULSA acts upon every report such as the type at issue in this case in good faith. Indeed, when one considers the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken, the difficulty for TULSA in handling such reports in any other manner become apparent. I accept that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public, and that TULSA relies upon such information to carry out its functions. In the present case I give significant weight to safeguarding the inherent importance in protecting the free flow of information to TULSA and I accept its position that the information was given in confidence in this case, notwithstanding the fact that the allegations were subsequently regarded as unfounded.

Conclusion

Therefore, as I find that TUSLA has satisfied the three requirements of section 42(m)(i) of the FOI Act, I conclude that the withheld information does not come within the provisions of the Act, and consequently that TUSLA was justified in refusing to fully release the records to the applicant.

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm TUSLA's decision to partially release the records at issue.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator