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Case Number: 160233

Whether TUSLA was justified in its decision to refuse access to records relating to the applicant's children on the basis of section 15(1)(i) of the FOI Act

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

Background

On 2 February 2016, the applicant sought from the HSE all files relating to her daughters since their admission into care in 2003. On 11 February 2016, the HSE refused the request under section 15(1)(i) of the FOI Act on the ground that the records had already previously been released to her. In her application for an internal review of that decision, the applicant stated that the files were left in an apartment previously rented and were now lost and destroyed.

The application for internal review was considered by TUSLA, as that body has assumed responsibility for the records at issue. On 29 April 2016, TUSLA granted access to records which had been created since the date of the applicant's last request, which was in February 2013, subject to redactions involving the personal information of third parties. The applicant sought a review by this Office of that decision on 20 May 2016 on the ground that she had only been provided with files for the last two years and she had requested all files since 2003.
In conducting this review I have had regard to the correspondence between the applicant and the HSE and TUSLA, and to correspondence between this Office and TUSLA on the matter.

Scope of the Review

This review is concerned solely with whether TUSLA was justified in its decision to refuse the applicant's request for records relating to her two daughters that were created between 2003 and 2013.

 

Preliminary issues

It is important to note at the outset that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on TUSLA of satisfying this Office that its decision to refuse to release the records sought was justified.

 

Analysis and Findings

TUSLA has relied on section 15(1)(i) of the FOI Act in refusing access to records created between 2003 and 2013. Section 15(1)(i) states that a head may refuse to grant a request where the request relates to records already released, either to the same or a previous requester where (i) the records are available to the requester concerned or (ii) it appears to the head concerned that that requester is acting in concert with a previous requester.

It is not in dispute that the applicant previously received copies of the records at issue. During the course of this review TUSLA stated that while it has no evidence to doubt the applicant's assertion that she no longer has the records that were previously released to her, it is alarmed that she did not safeguard the records released which are of an extremely personal and sensitive nature relating to family members. It stated that the applicant had made a large number of previous requests relating to the files in question and in the course of those decisions the records the subject of this review were released to her.

TUSLA added that the trend, for the most part, has been for the applicant to request all records, regardless of whether they had previously been released to her and that her requests were processed on the basis of new records added to the file since her previous request. It stated that all of her daughters' records have been released over time subject to the application of certain exemptions.

TUSLA further contended that the applicant previously lost records released to her on foot of an application made in 2008, when they were allegedly left behind on public transport. It stated that due to the receipt of repeated requests for all records, the vexatious nature of such an approach was pointed out to her. It has also provided copies of recent letters from the applicant's daughters which make it clear that they do not wish their personal information to be released to the applicant.

Finally, TUSLA indicated in the course of the review that there are a considerable number of records involved, approximately 3 to 4 boxes comprising some 17 large volume case files, and it has expressed concerns as to the amount of resources that would be required to properly consider all of the records coming within the scope of the request.

As the request was refused under section 15(1)(i), I must consider whether the conditions necessary for that section to apply exist. It appears that they do not. While I share TUSLA's concerns as to the applicant's failure to safeguard such sensitive and personal records, it appears that the records previously released are not available to her and TUSLA has not suggested otherwise. Accordingly, I find that section 15(1)(i) does not apply.

Nevertheless, it is also clear to me that TUSLA has other legitimate concerns about releasing the records to the requester, including;

- the fact that the applicant's daughters do not want their personal information to be released to the applicant,
- the possibility that the request might be considered to be frivolous or vexatious or form part of a pattern of manifestly unreasonable requests, and
- the fact that processing the request would require a substantial allocation of resources given the volume of records involved.

Accordingly, I do not consider it appropriate to direct the release of the records to the applicant. Instead, I consider that the appropriate course of action is to annul TUSLA's decision and to direct it to make a new first instance decision in respect of the applicant's original request.

 

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby annul the decision of TUSLA in this case. I direct that a fresh decision-making process be undertaken in respect of the request, as set out above, and that the applicant is informed of the outcome of its decision, in accordance with section 13 of the FOI Act.

 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator