Whether TUSLA was justified in its decision to refuse access to parts of records relating to a child safety assessment under section 37(1) and 37(7) of the FOI Act

11 August 2022

Background

In a request dated 13 January 2022, the applicant sought access to all information in relation to a child safety assessment concerning her son, which TUSLA referred to Barnardos to carry out. In a decision dated 8 February 2022, TUSLA part granted the applicant-�s request. It located 123 pages of records within the scope of the request, it granted access to 51 pages of records and it refused access to parts of the remaining records under section 37 (personal information) of the FOI Act. On 15 February 2022, the applicant sought an internal review of that decision. On 25 February 2022, TUSLA affirmed its original decision. On 13 March 2022, the applicant applied to this Office for a review of TUSLA's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to correspondence between the applicant and TUSLA, to correspondence between this Office and both TUSLA and the applicant, to the contents of the records at issue and to the provisions of the FOI Act. 

Scope of Review

In her application to this Office, the applicant states -�I understand that there were numerous phone calls and at minimum a meeting with his paternal grandmother regarding my son which is actually referenced at page 44 of the data access request. I am seeking the information as it relates to my son, regardless as to how 3rd party data is redacted. I am not seeking to violate any 3rd party data of his paternal grandmother. Simply that information which was relayed concerning my son, which I am legally entitled to under GDPR legislation.-�

For the avoidance of doubt, this review is not concerned with the Data Protection Act or the definition of personal data therein, but rather the definition of personal information contained in the FOI Act. FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned.

This review is confined to the scope of the application for review submitted to this Office and is therefore concerned solely with the question of whether TUSLA was justified in its decision to refuse access to parts of the records under sections 37(1) or 37(7) of the FOI Act.                                                                                                                                                                                                                                                                                                                                      

Preliminary Matters                                                                       

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner. This means that an applicant-�s motivation cannot be considered except insofar as such reasons are relevant to consideration of the public interest or other provisions of the FOI Act. The public interest factors considered in this review are set out below.

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.

Although I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in 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 and the material that I can refer to in the analysis is limited. Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

Section 37(1) and 37(7) - Personal Information

TUSLA refused access to parts of certain records, as identified on the schedule provided to the applicant and to this Office, on the basis that the information at issue is exempt under section 37(1) or 37(7) of the FOI Act.

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 or individuals other than the requester. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

Section 2 of the FOI Act defines "personal information" as information about an identifiable individual that, either - (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 an FOI body on the understanding that it would be treated by that body as confidential. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (i) information relating to the educational, medical, psychiatric or psychological history of the individual; (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual; (xiv) the views or opinions of another person about the individual.

In her application to this Office, the applicant states that she is seeking information in relation to her son. She states that it is her understanding that during the course of a Barnardos investigation, subcontracted by TUSLA, communications were made regarding her son with his paternal grandmother. She states that information relating to her son with reference to his paternal grandmother is missing from the response to her FOI request. The applicant contends that she is legally entitled to the information concerning her son.

In its submissions to this Office, Tusla states that it refused access to parts of the records, which contain personal information relating to third parties. It states that these third parties are persons other than the applicant or her children.  It states that the information contains the names and other personal information of third parties. Tusla states that there were no grounds to set aside the privacy rights of these third parties in this case. Tusla states that a number of the records contain joint personal information and it took the view that it was impossible to release parts of these records without disclosing the personal information of persons other than the applicant and her children. Tusla states that it must have regard to the fact that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large.

I have examined the records carefully and I am satisfied that none of the withheld parts of the records contain information which is personal information relating solely to the applicant. The information withheld is either the personal information of third parties or personal information relating to the applicant and/or her children that is intertwined with the personal information of third parties. In theory, one could extract certain words or phrases from these records, which relate solely to the applicant or her children. However, those parts appear in the context of other information relating to third parties. Having regard to section 18 of the FOI Act, I conclude that to release such versions of the records would be misleading. In addition, I consider that even if names were to be redacted, the individuals would be identifiable from the content of the records. 

I find that the withheld parts of the records, as identified on the schedules provided, are exempt from release on the basis of section 37(1) and section 37(7) subject to the provisions of section 37(2) and 37(5), which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) 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) 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) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance (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 information would be to the benefit of the person to whom the information relates. I am satisfied that subsection 5(b) does not apply in the circumstances of this case. Accordingly, I will now address whether or not section 37(5)(a) of the FOI Act applies in this case.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court inThe 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-�). In this regard, I note that a public interest should be distinguished from a private interest.

As regards the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. [2020] IESC 57) (-�the Enet case-�) In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the FOI Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure. While the comments of the Supreme Court cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only in circumstances 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 this case, I accept that there is a public interest in openness and accountability in relation to the manner in which TUSLA carries out its functions, including how it deals with safety assessments concerning children. There is also a public interest in members of the public knowing that information held about them or their children by public bodies is accurate. On the other hand, there is a public interest in members of the public who engage with TUSLA being able to communicate frankly and in confidence in relation to personal or sensitive matters. I acknowledge that the applicant is very anxious to have access to all of the information concerning her son; however, the fact that TUSLA has already released a significant amount of the information in the records goes some way towards serving the public interest in accountability around how safety assessments concerning children are conducted. 

It seems to me that in this case, TUSLA sought to provide as much information as possible in relation to the applicant and her son while simultaneously seeking to protect the privacy rights of other parties. The information at issue is of an inherently private and sensitive nature. As mentioned above, I am cognisant of the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put. Having carefully considered the matter, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply. Consequently, I find that TUSLA was justified in refusing access to the withheld information under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm TUSLA-�s decision. I find that TUSLA was justified in refusing access to parts of the records at issue under section 37(1) or 37(7) of the FOI Act as their release would involve the disclosure of third party personal information or joint personal information and the public interest that the request should be granted does not outweigh the public interest that the right to privacy of those individuals should be upheld.

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.

Deirdre McGoldrick
Senior Investigator