Whether TUSLA was justified in refusing access to two records relating to the applicant and other individuals, under sections 6, 37 or 41 of the FOI Act

20 November 2019

Background

On 8 June 2018, the applicant made an FOI request to TUSLA for access to full records of his time in a particular institution within a particular time-frame. TUSLA issued a decision on 22 August 2018. It released the majority of the records and withheld three records. It withheld two records under section 6 of the FOI Act and one record under section 37 of the FOI Act. On 11 September 2018, the applicant sought an internal review decision. On 18 September 2018, TUSLA issued its internal review decision, in which it affirmed its original decision. On 26 September 2018, the applicant applied to this Office for a review. 

In conducting my review, I have had regard to the correspondence between TUSLA and the applicant as described above, as well to correspondence between this Office and both TUSLA and the Adoption Authority of Ireland (AAI).  I have also had regard to the contents of the records at issue and the provisions of the FOI Act and the Adoption Act 2010. 

Scope of the Review

During the review process, TUSLA released Page 95. In addition, the AAI made submissions on section 41 of the FOI Act. Accordingly, my review is solely concerned with whether TUSLA was justified under the FOI Act in refusing access to Pages 38-39 (“the records”), under sections 6, 37 or 41 of the FOI Act.

Preliminary Issues

First and foremost, I would like to apologise to the applicant for the length of time which this review has taken to complete. Given the legal issues involved, I considered it appropriate to consult the AAI and ensure that we understood its position fully. This consultation process and subsequent consideration of legal issues meant that the review took longer than I would have liked. I am grateful to the AAI for its cooperation and to the applicant for his patience.

Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.  

Thirdly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicant's reasons insofar as they might be construed as a public interest argument.

Finally, the records comprise two letters from the AAI about the applicant’s tracing request. They contain information which is already known to the applicant. I note that the investigator initially attempted to resolve this case by way of a settlement, but was unsuccessful. Given the content of the records and the facts of this case, it seems regrettable to me that the parties could not have resolved this matter for the applicant outside of FOI. Nonetheless, I must now make a legally binding decision within the provisions of the FOI Act and will proceed to consider them now.

Analysis and Findings

Freedom of Information Act 1997

It is worth noting the relevant legislative history at this juncture. Section 161 of the Adoption Act 2010 amended the Freedom of Information Act 1997 to introduce a new provision - section 46(1)(dd) - which provided that the Freedom of Information Act 1997 did not apply to:

“a record held or created under the relevant statutory provisions by the Adoption Authority or an employee of the Authority, relating to or arising from the making of an adoption order or the recognition of an intercountry adoption effected outside the State, within the meaning of the Adoption Act 2010, (other than a record concerning any other functions of the Authority or the general administration of the Authority),”.

This provision does not have an equivalent in the Freedom of Information Act 2014 (FOI Act). As noted below, section 6 of the FOI Act provides that the AAI is a partially-included agency. However, it is fair to say that the FOI Act does not restrict its application to adoption records in the same way in which the Freedom of Information Act 1997 did. In reaching my conclusions in this case, I am cognisant of this fact.

Section 6 - Public Bodies

Section 6(2)(a) of the FOI Act provides that an entity specified in Part 1 of Schedule 1 to the FOI Act shall, subject to the provisions of that Part, be a public body for the purposes of the FOI Act.

Part 1(a) of Schedule 1 provides:

“Section 6 does not include a reference to—

(a) the Adoption Authority of Ireland, insofar as it relates to records concerning, or arising from, the making of an adoption order or the recognition of an intercountry adoption effected outside the State, within the meaning of the Adoption Act 2010”.

TUSLA withheld the records on the basis that the AAI is a partially-included agency. However, in this instance, the applicant did not make his FOI request to the AAI. He made it to TUSLA. Moreover, TUSLA does not dispute that it holds the records. Therefore, TUSLA is the relevant public body for the right of access under section 11 of the FOI Act. In the circumstances, I do not accept that the fact that the AAI is a partially-included agency operates to exempt the records from release. During the review process, the AAI made submissions on section 41 of the FOI Act, which I consider below. 

Section 41 - Enactments relating to non-disclosure of records

The FOI Act

Section 41(1)(a) of the FOI Act provides that a head shall refuse to grant an FOI request if the disclosure of the record is prohibited by law of the European Union or by an enactment which is not listed in Schedule 3 to the FOI Act. In effect, the non-disclosure provision overrides any right of access under FOI, unless that particular provision is specified in Schedule 3. I take the view that in order for section 41(1)(a) to apply, a provision must exist that explicitly prohibits the release of the records, that is clear in its meaning and effect, and that can be interpreted only as prohibiting disclosure of the information in question. I am also of the view that the objective of section 41(1) - subject to the exceptions specified in Schedule 3 - is to protect the actual information, whether it is held by the body specified in the original enactment or by some other FOI body.

Section 41(1)(b) of the FOI Act applies where non-disclosure is authorised (as distinct from disclosure being prohibited). It applies where the non-disclosure is authorised by an enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) in certain circumstances and the case is one in which the FOI body would refuse to disclose the record under that enactment. Section 41(1)(b) requires that non-disclosure is authorised; an absence of an obligation to release is not sufficient.

The Adoption Act 2010

Section 86 of the Adoption Act 2010 provides:

“(1) An tArd-Chláraitheoir shall keep an index to make traceable the connection between each entry in the Adopted Children Register and the corresponding entry in the register of births.

(2) Notwithstanding section 85, the index kept under subsection (1) shall not be open to public inspection, and no information from that index shall be given to any person except by order of a court or of the Authority.”

Section 88 of the Adoption Act 2010 provides:

“A court shall not make an order—

(a) referred to in section 86 (2),

(b) for the discovery, inspection, production or copying of any book, document or record of the Authority (or of any extracts from any of them), or otherwise in relation to the giving or obtaining of information from any of them,

unless the court is satisfied that it is in the best interests of any child concerned to make the order.”

Neither section 86 nor 88 is an exception specified in Schedule 3 to the FOI Act.

Submissions

The AAI submits that the relevant provisions are section 88 of the Adoption Act 2010 and section 41(1)(a) of the FOI Act. It says that these provisions, read together with the relevant case-law, mean that the law regarding the privacy of adoption records shall apply irrespective of whether the record is held by the AAI or another body and a Court order would appear to be required to release the records at issue. It submits that the Courts have been clear that the prohibition contained in section 88 of the Adoption Acts relating to the release of adoption records is not restricted solely to the information in the index referred to in section 86, but is sufficiently broad to capture all records held by the AAI.

Analysis and Findings

I accept that if a prohibition exists under sections 86 and/or 88 of the Adoption Act 2010, it protects the information concerned irrespective of which FOI body holds it. However, in my view, section 88 refers back to section 86 and is directed at the Court. It outlines the type of circumstances in which the Court might be asked to make an order to release information from the index under section 86. This Office has established, with the assistance of the General Register Office, what that index contains. It does not capture the particular information under review in this case. Accordingly, section 86 of the Adoption Act does not apply to the records and I do not need to consider it further.

The AAI points to case-law which, it says, supports a broader interpretation of section 88(b) and its predecessor (section 8 of the Adoption Act 1976). As noted above, in the first instance, I believe that section 88 reads back to section 86. Nonetheless, I acknowledge that there is an alternative reading of section 88(b) in light of its predecessor, which deals more generally with the kinds of court orders which can be made. However, this does not alter my view that section 88 sets out the circumstances in which the Court can make an order under the Adoption Act 2010. I do not believe that it explicitly prohibits the release of the records, is clear in its meaning and effect and can be interpreted only as prohibiting disclosure of the records, for the purposes of section 41(1)(a) of the FOI Act. Neither do I consider that it is an enactment which authorises the AAI not to release the records, for the purposes of section 41(1)(b) of the FOI Act.

I should add that I believe that giving such a broad reading to section 88(b) would achieve a similar objective to that of section 46(1)(dd) of the Freedom of Information Act 1997, which was not replaced in the FOI Act 2014.

In the circumstances, I am not satisfied that section 41(1)(a) or (b) applies to the records. Accordingly, I find that TUSLA was not justified in refusing access to them under section 41 of the FOI Act. I will proceed to consider the records under section 37 of the FOI Act.

Section 37 – Personal Information

Having regard to the content of the records, I believe that TUSLA should have considered two possible ways in which the applicant may be entitled to access them. First, it should have considered whether one or more of the exceptions provided for in subsection (2) and (5) serve to disapply the exemption in section 37(1). In considering those exceptions, the applicant’s relationship to the individual concerned is irrelevant. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large", given that the FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. Secondly, in circumstances where individuals whose information is contained in the records are deceased, it should have considered whether the applicant is entitled to access the records as a member of a class in regulations made under section 37(8).

Sections 37(1) and (7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: “(viii) information relating to the age (etc.) of the individual”, “(ix) a number, letter etc. assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose”.

Section 37(7) provides that access to a record which relates to the requester shall be refused if 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 people other than the requester.

The records relate to the applicant, his birth-mother and his adoptive parents. I consider that section 37(1) of the FOI Act applies to them. In theory, one could extract certain words or phrases from the records which relate solely to the applicant. I have considered whether this would be practicable in the circumstances. However, those words or phrases appear in the context of information relating to the third parties. Having regard to section 18 of the FOI Act, I conclude that to provide redacted copies of the records would be to provide misleading records. My finding under section 37(1) is subject to other provisions of section 37, which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies to the records. That is to say: (a) they do not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

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

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.

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.

As noted above, I am required to disregard the applicant's reasons for his FOI request. Therefore I can only take into account the purpose for which he seeks this information to the extent that he identifies a public interest. The applicant has provided personal background to his FOI request. It is not appropriate or necessary for me to outline that background here. However, I can say that the applicant seeks access to the records in connection with his own history and the identities of his birth parents. He submits that he is the one person remaining at the centre of the story with the most central need to be informed. While I have a great deal of sympathy for the applicant, I am bound to treat his interest as a private rather than a public interest. I must also bear in mind that release under FOI is effectively release to the world at large. I 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.

Section 37(8)

Section 37(8) provides that notwithstanding section 37(1), the Minister may provide by regulations for the grant of an FOI request, where the individual to whom the record concerned is deceased and the requester is a member of a class specified in the regulations. The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, S.I. No. 218/2016 (2016 Regulations) provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

I understand from the applicant’s submissions that his birthmother and his adoptive parents are deceased. Having regard to the particular circumstances surrounding his adoption, I consider that the applicant may be seeking access to the records as the next of kin of deceased persons, for the purpose of the 2016 Regulations. However, I make no finding as to the applicant’s status in relation to any persons. It is for TUSLA to establish whether these regulations apply to any of the records and to apply the relevant provisions and guidelines, including consideration of the public interest in the confidentiality of personal information. I am satisfied that in the circumstances of this case, TUSLA should have considered the 2016 Regulations. I consider that the appropriate course of action for me is to annul TUSLA's decision and direct it to undertake a fresh decision-making process, having due regard to the provisions of the 2016 Regulations and the Guidance produced by the Minister for Public Expenditure and Reform.

I am conscious of the delays to date in this matter. I will therefore direct TUSLA to make a fresh decision no later than four weeks after the appeal period has expired. This should give it the opportunity to consult the applicant about his status in the context of the 2016 Regulations in relation to the deceased parties and consider any material received. If it is necessary for the applicant to return to this Office on an application for review, I undertake to expedite any such review.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the decision of TUSLA and direct it to undertake a fresh decision-making process in respect of the records, having due regard to the 2016 Regulations and the Minister’s Guidance. I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by TUSLA to my decision within 20 working days of the expiration of the time for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) 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.

 

 

 

Peter Tyndall

Information Commissioner