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Case Number: 160541

Whether TUSLA was justified in refusing to grant access to further records relating to the foster carer file held on the applicant and her husband on the basis that they did not exist or could not be located once all reasonable steps to ascertain their whereabouts had been taken under section 15(1)(a) of the Act; and whether it was justified in withholding other records in full or in part on the basis of section 37 of the FOI Act

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

The applicant and her husband were approved foster carers from 2013 to 2015. On 15 May 2015, they sought access to their fostering files and all data held on them since 3 May 2013. This initial request was made to the Health Information & Quality Authority (HIQA) which determined that TUSLA was the body which held the records. Despite HIQA forwarding the request to TUSLA on 19 May 2015, TUSLA did not issue a decision on their request until 11 January 2016. In its decision it granted access to 254 records in full to the applicant and her husband. The remainder (125 records) were refused in full or in part on the basis of section 37(1) of the FOI Act (personal information relating to third parties).

On 1 May 2016, the couple requested an internal review. TUSLA did not respond, so the applicant applied to this Office on 14 October 2016 for a review on the basis of a deemed refusal. Following correspondence from this Office, TUSLA issued an effective position on 22 November 2016, effectively affirming its earlier decision. This Office then closed the file relating to that review (Case No. 160448 refers). All references to the applicant in this decision should be taken as referring to her and her husband.

On 5 December 2016, the applicant applied to this Office for a review of TUSLA's decision. I note that Ms Sandra Murdiff, Investigator in this Office, contacted the applicant during the course of this review and outlined her view that TUSLA was justified in its refusal of a number of the records at issue. The applicant responded that she sought the records in order to identify misleading and false information which had been used to discredit her and her husband, but made no further submissions. Accordingly, I have decided to conclude this review by way of a formal binding decision.

In conducting this review, I have had regard to the correspondence between TUSLA and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and TUSLA, as well as the contents of the records concerned.

Preliminary Matters

I should state at the outset that, it appears to me that TUSLA has released a number of records in relation to this case, which in my view would have more properly been withheld on the basis of sections 31(1)(b), 37(1) or 42(m)(i), which are mandatory provisions of the Act. While I can only deal with the review before me and apply the FOI Act to the records which have not been released (in full or in part) in this case, I would expect TUSLA to have regard to these provisions in future when dealing with similar records.

Records

TUSLA identified 379 records as coming within the scope of the applicant's FOI request. It granted access to 254 records in full. Citing section 37(1) of the FOI Act (personal information), it refused access to 72 records in full and the remaining 53 records in part.

I note that the document schedule provided to the applicant jumps from Record No. 339 to 440 and gives the impression that 479 records were identified as relevant to the applicant's request. I am satisfied that this was an error and that 379 records were identified relating to this review by TUSLA. However, for ease of reference I shall use its numbering system.

I also note that TUSLA refused access to Record 472, which dates from 2010. As the applicant's request sought records from May 2013 onwards, this record is outside the scope of this review.

Section 9

In her submissions to this Office, the applicant has raised issues about TUSLA's performance of its role in relation to managing foster carers and its interactions with her and its handling of the review of her status as an approved foster carer. She has emphasised the reasons why she seeks the records in question. I should point out that it is outside the scope of the Commissioner's role to adjudicate on how public bodies perform their functions generally. It is also important to note that section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded.

Nonetheless, I note that the applicant has referred to her desire to access records in order to correct incorrect information held about her. I also note that Ms Murdiff contacted the applicant and explained that this review is solely concerned with access to records and that the applicant would have to make a fresh request to TUSLA under section 9 of the FOI Act in regard to amendment to records containing personal information relating to her where the information is incorrect, incomplete or misleading. I am satisfied that this is the correct approach.

However, the applicant has indicated that TUSLA informed her that "information that is recorded cannot be altered" and provided a copy of an email from TUSLA in this regard. I would like to draw TUSLA's attention to section 9 of the FOI Act and remind it of its obligations under section 9(11) of the FOI Act, which provides that where such an application is made which is not in the proper form or which does not purport to be an application under section 9, but which applies for the amendment of personal information which can only be effected by an application under section 9, then the FOI body must assist or offer to assist the individual in the preparation of the application. I would also inform the applicant that such an application should as far as is practicable, specify the record(s) concerned, the amendment(s) required and include appropriate information in support of the application.

Scope of Review

The applicant has indicated that she is of the view that further records should exist which were not released to her. Accordingly, this review is concerned with whether TUSLA was justified in refusing to grant access to further records to the applicant on the basis that they did not exist or could not be located once all reasonable steps to ascertain their whereabouts had been taken under section 15(1)(a) of the Act.

It is also concerned with whether TUSLA was justified in its decision to refuse to grant access to records in whole or in part relating to the applicant's foster carer file on the basis of section 37(1) of the Act.

Analysis and Findings

Section 15(1)(a)
The applicant was of the view that further records should exist relating to her request, which means that section 15(1)(a) of the Act applies.

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a "search case" is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in search cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable. This Office does not normally search for records.

In response to queries from this Office, TUSLA provided details of the searches carried out to locate relevant records in this case. These have been provided to the applicant by Ms Murdiff and I do not intend to repeat them in detail here.

In relation to queries from this Office relating to the applicant's view that files appeared to have "gone missing" following her initial request and that she had been told that some records had been "requested back to Markievicz House" and could not be released, TUSLA stated that at the time of processing the request, the Fostering Review Committee had sought the fostering files of the applicant which delayed the initial handling of her request. It also stated that these files were subsequently retrieved and included in the records identified as relevant to the applicant's request.

The applicant is of the view that more extensive minutes of review meetings should exist, as well as additional records setting out information received by TUSLA from a third party relating to her. TUSLA referred to the HSE Risk Records Management Policy in use in TUSLA in this regard. I note that the policy clearly states at point 7.1 on page 10 that "[h]andwritten notes of meetings & draft minutes should be routinely destroyed once the minutes have been agreed." It also states at point 7.1 page 9 that "[when creating a record, the author should [b]e clear about the purpose of the record. Why are you writing the record? This will determine what you write and how much detail is necessary." TUSLA stated that there are no more extensive minutes or records of meetings other than those released to the applicant.

Effectively, TUSLA's position is that all of the records created in relation to the applicant's request have been identified in the document schedule and released in full, other than those withheld in full or in part on the basis they they contain the personal information of parties other than the applicant (and her husband).

While I can understand the applicant's frustration in this case, there is no evidence before me to show that further records exist. It seems to me that it may be the case that certain records sought by the applicant have been located and considered for release by TUSLA, but due to its decision to refuse access to them it has described them in the broadest terms in the Document Schedule provided. Furthermore, although this Office is obliged to give reasons for its decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the content of the records or give detailed reasons for my findings is limited.

Accordingly, in the circumstances of this case, I find that Section 15(1)(a) applies and that TUSLA was justified in its decision not to grant access to further records to the applicant on the basis that no other relevant records exist or can be located once all reasonable steps have been taken to ascertain their whereabouts.

Section 31(1)(b)
Record 11 is a court report which relates to proceedings in the Circuit Family Court under family law legislation. Section 31(1)(b) of the FOI Act is a mandatory exemption which requires that records be withheld where it is known, or ought reasonably to be known, that their disclosure would constitute contempt of court. It does not require the consideration of the public interest.

Court childcare proceedings are held in camera and it is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority. TUSLA has not relied on section 31(1)(b) in its refusal of this record. However, I consider that any record that was created for in camera proceedings is required to be withheld under section 31(1)(b). I am satisfied that Record No. 11 is such a record and that section 31(1)(b) of the Act applies. Accordingly, I am satisfied that TUSLA was justified in not releasing this record to the applicant, albeit on the basis of section 31(1)(b), rather than section 37(1).

As I have found Record No. 11 to be exempt from release under section 31(1)(b), I do not need to consider it further.

Section 42(m)(i)
TUSLA relied on section 37(1) of the FOI Act to refuse access to the records at issue. However, it is my view that section 42(m)(i) of the Act is the more appropriate section to be considered in relation to Records No. 143, 176, 192, 213, 216, 227 and 230 which were withheld in full and Record No. 199 which was withheld in part. Although it has not been invoked by TUSLA, section 42(m)(i) acts to restrict the applicability of the FOI Act in certain circumstances and I therefore believe it appropriate to consider this provision first, before proceeding to consider section 37, if necessary.

Section 42(m)(i) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of 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. In essence, the section provides for the protection of the identity of persons who have provided information in confidence to an FOI body, or where such information is otherwise in the FOI body's possession, in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the person who provided information. The second is that the provider of information must have provided that information to the FOI body in confidence, while the third is that the information provided to the FOI body must relate to the enforcement or administration of the law.
First Requirement
The first requirement is clearly met in this case, given that the records contain the name of the person who provided information to TUSLA regarding the applicant.

Second Requirement
The second requirement is that the provider of information must have provided that information to the FOI body in confidence. It is arguable that if people who wished to provide information to TUSLA in cases where they have concerns about people providing foster care for children were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. I am of the view that without an assurance or understanding that information being provided was provided in confidence, such persons may be reluctant to provide the information.

Having regard to the nature of the information at issue I am of the view that the information was given in confidence in this case and I find that the second requirement has been met.

Third Requirement
The third requirement is that the information provided to the FOI body relates to the enforcement or administration of the law. 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.

Having found that each of the three requirements are met, I find that section 42(m)(i) the FOI Act applies and that TUSLA was justified in refusing to grant access to Records No. 143, 176, 192, 213, 216, 227 and 230 in full and Record No. 199 in part on that basis. Having so found, it is not necessary for me to consider the applicability of section 37 to the information in these particular records.

Section 37 - Personal information

Section 37(1)
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. The effect of section 37(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 37 applies - in this case section 37(2), or 37(8).

Section 37(7) - Joint Personal Information
In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 37(7) further provides for the refusal of a request where the body considers that access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual other than the requester.

The records at issue in this case relate to the applicant's fostering of children in care and comprise various records regarding home visits, risk assessments, referrals, case notes, court documents, internal TUSLA correspondence, reports and minutes of review meetings. A number of the records refused in full or in part contain third party personal information which is so closely tied to that of the applicant, it would be impossible to separate it out.

Due to the nature of the records concerned, many contain personal information relating to children who the applicant cared for, and their families. Having carefully examined the records which were refused, in full or in part, on the basis of section 37(1), I am satisfied that the information withheld from the following records solely relates to such personal information: 124, 125, 130, 142, 144, 149, 152, 156, 157, 170, 174, 177, 178, 190, 191, 250, 252, 253, 262, 264, 265, 271, 279, 285, 290, 294, 299, 300, 308, 320, 323, 327, 331, 333, 442, 443, 449, 450, 452, 453, 461 and 479 (withheld in part), and 58, 59, 90, 101, 193, 198, 241, 242, 243, 255, 256, 257, 263, 266, 270, 273, 276, 293, 295, 301, 307, 312, 454 and 478 (withheld in full). As the applicant has confirmed to this Office that she is not seeking the personal information of third parties, I do not intend to consider these records further.

I am also satisfied that section 37(1) and/or section 37(7) applies to the following records: Records No. 5, 78, 86, 117, 151, 161, 162, 172, 173, 179, 186, 189, 194, 196, 202, 223, 228, 235, 240, 244, 245, 246, 247, 254, 260, 473 and 477 refused in full and Records 1, 2, 3, 116, 163, 302, 319 and 458 refused in part.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Consequently, I find that section 37(2) does not apply to the information in the records at issue.
Section 37(5) - The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the request would benefit the person to whom the information relates.

TUSLA's original decision did not demonstrate a consideration of the public interest in this case. However, its effective position letter stated that the decision maker had weighed the balance between a person's right to obtain records relating to him or her against the requirement on TUSLA to carry out its basic function, which is child protection and welfare. It stated that on balance, it considered the requirement to ensure child protection services are operating to the optimum overrides the right of an individual to obtain such files.

The applicant has not made any public interest arguments in favour of release. In essence she has stated that she is solely seeking the records at issue in order to ensure that the information on which the decision to change her approval status was based was correct, and to amend it if, as she suspects, it was not.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

As noted above, subject to the provisions of the Act, I am required to disregard the applicant's reasons for her FOI request. Therefore, I can only take into account the purpose for which she seeks this information to the extent that it comprises a public interest. However, I believe that the interest which the applicant sets out is more properly viewed as a private rather than a public interest. Furthermore, I must also bear in mind that release under the FOI Act must be taken as release to the world at large. Accordingly, this is not a question of whether to disclose certain information only for the purposes of the applicant challenging or examining TUSLA's decision. The Act does not provide for any restriction on records released under FOI.

I recognise that there is a public interest in transparency and accountability around public bodies' activities and decision-making. This is acknowledged in section 11(3) of the FOI Act, which I believe to be a "true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law". Insofar as there is a public interest in transparency and accountability around TUSLA's foster care review process, I consider that this has been met in the circumstances by the records released in full or in part relating to the applicant and the review of their position as foster carers.

Having regard to the above, on balance, I do not believe that the public interest that the FOI request should be granted outweighs the public interest that the right to privacy of third parties should be upheld. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Accordingly, I find that TUSLA was justified in withholding access to the records listed above, in full or in part, on the basis of section 37(7) of the FOI Act.

Records to be Released
Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent. However, I am of the view that a number of records withheld by TUSLA in part or in full on the basis of section 37(1) contain information relating to the applicant, which could be released with minimal redactions relating to third party personal information, without them being misleading. Accordingly, find that TUSLA was not justified in refusing to grant access to these records on the basis of section 37(1). I direct the release of Records 181, 187, 188, 203, 210, 220, 231, 233, 238, 196, 197, 298 and 455 subject to the redaction of third party personal information. For ease of reference I shall set out details of the redactions on the Appendix attached.

Issues Arising During the Review
During the course of this review, there was some confusion in relation to the information which had been redacted from Record 328 which was listed in the document schedule as part-granted. TUSLA was unable to confirm but indicated that it appeared that the record had been released in its entirety. Having reviewed the record at issue, it seems to me to contain personal information which I consider to be exempt from release as set out above. However, as TUSLA has stated that this record has been released in full there is nothing for me to review in this regard.

I would also like to draw TUSLA's attention to the issue of the redaction of information from the records released in this case. From my examination of the copies provided to this Office, the redaction of information relating to children in care and their families has not been consistent. Names and personal information have been redacted from some records and not from others released to the applicant, and in some cases names are shown on one part of a page/record and redacted on another.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of TUSLA. I affirm its decision to refuse to grant access to the records listed above in full or in part under sections 31(1)(a), 37(7) and 42(m)(i) of the FOI Act. I affirm its decision to refuse to grant access to additional records under section 15(1)(a) of the Act. I find that it was not justified in refusing to grant access to a small number of records under section 37(1) and I direct their release (as set out in the Appendix to this decision).

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator