Whether TUSLA was justified in refusing to fully grant the applicant's request for records concerning her granddaughter (a minor) and daughters

05/07/2018

Background

On 24 March 2017, the applicant made an FOI request to TUSLA for all files concerning her minor granddaughter (the child) and daughter (the child's mother), and for possible files concerning another daughter. The child's mother also signed the request. TUSLA subsequently asked the applicant to provide further particulars to enable it to find relevant files. On 4 April 2017, the applicant provided further details in a letter signed by her and both daughters.
TUSLA's decision of 10 July 2017 partially granted the request, and relied on sections 31(1)(a) (legal professional privilege), 35(1)(a) (confidential information) and 37 (personal information) in refusing to fully grant it. The applicant sought an internal review on 4 August 2017, in which she also questioned whether TUSLA had considered all records covered by her request, including certain records concerning the involvement of a particular social worker (Mr A).
TUSLA's internal review decision of 3 October 2017 granted some further records, and relied on sections 31(1)(b) (contempt of court), 35(1)(a) and 37 in relation to the rest. On 28 February 2018, the applicant sought a review by this Office of TUSLA's decision. She described certain records that she had not been provided with, including records created by Mr A, and outlined her family's dissatisfaction with what she says are "omissions and inaccuracies" in a report that he prepared, as directed by the Court, under section 20 of the Child Care Act, 1991 (the section 20 report). The application was signed by the applicant, her two daughters, and another family member.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, TUSLA, and the applicant. I have had regard also to the records considered by TUSLA and to the provisions of the FOI Act.

Scope of Review

This review is confined to whether TUSLA has justified its refusal to fully grant the applicant's request.

Findings

Section 15(1)(a) - adequacy of search

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to search for records.
In considering section 15(1)(a) in this case, it should be noted that this Office has no remit to examine, or make findings on, whether or not TUSLA should have created further records, the level of detail in records that were created, or TUSLA's record management practices generally.

The applicant's position

The applicant says that she has not been given access to the child's own words, to Mr A's account of his visits or telephone calls to the child's mother or the accounts of his calls to mediation services, psychologists, and CARI. She says that it is important to note words spoken and events as close to a visit as possible, especially when dealing with children. She says that Mr A told the child's mother about various discussions he had had with some of the above parties and with her doctor and that Mr A made many calls to the child's mother that are not referred to in the records. She refers to the comprehensive record keeping of other social workers and says that there should be a standard procedure for recording information relevant to an investigation.
The applicant describes various contacts between Mr A and others that she says should be referred to in the records. Some of the examples cited by her concern a call she says Mr A made to the child's mother on 3 June 2014, "numerous calls" to the child's mother between then and the end of September 2014 and Mr A's visit to the child's mother's house in September.

TUSLA's position

TUSLA's position is that it has taken reasonable steps to look for records covered by the request and/or that further records do not exist.
In summary, it says that it opens files in the name of the relevant child, which hold all background and related information. Social workers' records of visits to parties relevant to any case, and records of telephone calls, are retained on the files as case notes. Handwritten notes on which such notes are based are confidentially destroyed.

TUSLA says that Mr A says he destroyed his handwritten notes and recorded all case notes on the electronic Social Work Information System (SWIS) in accordance with requirements. It says that there are no further notes relating to his visits on either the hard copy (paper) file or on SWIS other than those contained in the records considered, in which regard it refers to notes of telephone calls on two partially granted pages, and parts of the section 20 report.
TUSLA says that there are no notes of the telephone calls made by Mr A to various parties as also referred to in the section 20 report. It says that there are no notes of calls to a private psychologist, or to CARI (other than certain records that concern contacts made by other social workers to this organisation). It says that Mr A's remit was to complete the section 20 report, and that he recalls that records of calls he made solely for the purpose of completing it may have only been recorded in the actual report. TUSLA also says that the Principal Social Worker responsible for the case at the time recalls that the social worker used the section 20 report to evidence his work and that the Principal Social Worker is satisfied that no other records covered by the request exist.
TUSLA says that there are no further notes of calls made by Mr A to the child's mother. It refers to various notes on the file that were drawn up by various social workers, including Mr A.

I note that record 14 contains the child's mother's account of a discussion she had with Mr A on 3 June 2014. Under the impression that the section 20 report was at that stage complete and that TUSLA's submission may not have been directly relevant in the circumstances, this Office asked TUSLA to ascertain if Mr A recalled any such discussion and if he created any note. TUSLA has not replied to this query. However, the applicant subsequently clarified to this Office that the section 20 report was not signed by Mr A until September 2014 and signed off by another social worker in October 2014.

Analysis

I can appreciate that the applicant would consider that the file should contain detailed accounts of TUSLA's interactions with her daughter and granddaughter and that she would want explanations regarding the further records she considers should exist. However, section 15(1)(a) of the FOI Act does not require TUSLA to account for all the records the applicant says should be on the file. Rather, in order for me to be satisfied that section 15(1)(a) applies, the FOI body must demonstrate that it has taken all reasonable steps to ascertain the whereabouts of the records.
According to TUSLA's submissions, it has examined the relevant file, and asked Mr A and the Principal Social Worker to comment. Mr A says that he holds no handwritten notes and that he recorded various events either on the SWIS or in the section 20 report. TUSLA has confirmed to this Office in writing that no further notes are held. This Office has no role in relation to the extent to which TUSLA's staff record events or retain records. In the circumstances, I am satisfied that TUSLA has demonstrated that it has taken all reasonable steps to ascertain the whereabouts of further records and I find that section 15(1)(a) applies.

Section 31(1)(b) - contempt of court

TUSLA has relied on section 31(1)(b) in relation to records 77, 78, 120 and 212-229. Section 31(1)(b) of the FOI Act is a mandatory exemption that applies to a record if the head of the FOI body "knows or ought reasonably to have known that its disclosure would constitute contempt of court". The provision does not require the consideration of the public interest.

TUSLA says that court proceedings relating to children are conducted under the "in camera" rule, and that it could be held in contempt of court if it granted access to the records without the permission of the Court.

Section 29 of the Child Care Act, 1991 requires proceedings to be held otherwise than in public ( the "in camera" rule ). It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority.
I am satisfied that the records were created further to matters related to the provisions of the Child Care Act 1991 and are covered by the in camera rule. Neither the Commissioner nor this Office has authority to disregard the statutory provisions relating to the in camera nature of child care proceedings. I am not aware of the existence of any prior judicial authority for the release of these records, and thus I consider that the grant of access to the applicant on foot of her FOI request would constitute contempt of Court. In the circumstances, I find that the above records are exempt under section 31(1)(b) of the FOI Act.

Section 37 - personal information

TUSLA withheld the rest of the records, or parts of records, under sections 37 and 35 of the FOI Act. I will consider section 37 (the personal information exemption) first.
Before I do so, I note that TUSLA has granted partial access to some records by redacting considerable portions of those records. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
In so far as the Commissioner's position on granting partial access to records is concerned, he takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Section 37(1)

Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information.
At the outset, I will deal with the fact that the records concern a child whose mother has consented to disclosure of records to the applicant. Generally speaking, the FOI Act enables a parent to access a record containing personal information about their minor child (and any information about the parent that is in the record). However, the relevant provisions do not entitle a parent to access to the personal information of other identifiable individuals in such a record. This would include any comments the minor may have made about those other individuals.
"Personal information" is defined at section 2 of the FOI Act as "information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential"
Section 2 also lists 14 examples of what must be considered to be personal information. They include (i), "information relating to the educational, medical ... history of the individual", (ii) "information relating to the financial affairs of the individual", (iii) "information relating to the employment or employment history of the individual" and (xiv) "the views or opinions of another person about the individual". Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.
I am constrained in the description I can give of the withheld information. Having examined the records, I am satisfied that the withheld information falls into a number of the examples of what comprises personal information. Although not necessary to go further, I also consider it to meet both parts of the definition of the term. I can also say that the information is either entirely personal information relating to identifiable third parties (third party personal information), or is joint personal information i.e. third party personal information that is inextricably linked to personal information relating to the applicant.
I find the withheld information to be exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. However, section 37(7) provides for refusal of a record that would, in addition to disclosing personal information relating to the requester, disclose joint personal information.
Section 37(2)(b) provides for the grant of access to personal information relating to individuals other than the requester where those individuals consent to such access. TUSLA has granted access to various details concerning the parties who consented to the release of their personal information to the applicant. However, those consents do not entitle the applicant to any other third party personal information that is also contained in the records.
I am satisfied that the remaining circumstances set out in section 37(2) do not arise in this case.

Section 37(5)

Section 37(5) provides that a record that is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I have no basis for considering that the release of the information at issue would benefit the third parties to whom it relates and I find that section 37(5)(b) does not apply.

The public interest (section 37(5)(a))

On the matter of where the public interest lies, I have had 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] 1 IR 729, [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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner[2014 No. 114 MCA] ("the F.P. case"),  said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the -�public interest-� in granting access is not to be determined on the basis of the appellant-�s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.-� Thus, I cannot take into account any private interests that the applicant may have in the grant of access to the withheld information.

As already outlined, the applicant is dissatisfied with Mr A's handling of the child's case, particularly the contents of the section 20 report and how he documented his various actions. She accepts that this Office has no role in reviewing TUSLA's performance of its functions in relation to the child or related matters. Even if the applicant had argued that her dissatisfaction with Mr A's actions weighs in favour of granting access to the records, it would not be appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis of assertions to the effect that an FOI body's processes may have been inadequate or that it did not comply with fair procedures. As the Commissioner said in his composite decision in cases  090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
In the case at hand, there is a public interest, recognised by the FOI Act, in establishing that TUSLA carried out its functions in relation to the child in a way that was consistent with the principles of natural and constitutional justice. As already mentioned, this is entitled to significant weight when the constitutional rights of individuals may be affected by TUSLA's actions. While this public interest has been served to some extent by the material released to date, I accept that it would be further served if access to the withheld records was granted.
On the other hand, both 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). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large, as is the sensitive context in which the records in this case were created. I am satisfied that placing the withheld information in the public domain would significantly breach the rights to privacy of the other third parties.
I find that the public interest in favour of granting access to the withheld information does not outweigh the public interest that the right to privacy of the third parties should be upheld.

In the circumstances, there is no need for me to consider TUSLA's application of section 35. However, I will say that, if it were necessary, I would find the records to which I have found section 31(1)(b) to apply to also be exempt under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby  affirm TUSLA's refusal to grant access to further records under sections 15(1)(a), 31(1)(b) and 37(1) 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.

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Elizabeth Dolan
Senior Investigator