Whether Tusla was justified in refusing access to records relating to the applicants-� interaction with Tusla as set out in their request on the basis that sections 15(1)(a), 37 and 42(m)(i) of the FOI Act applied

25 January 2023

Background

In a multipart request dated 2 September 2021, the applicants sought access to various records relating to their interaction with TUSLA as set out in their request. In a decision dated 2 December 2021, TUSLA identified seven files, comprising 1023 records as relevant to the request and granted partial access to these records, refusing access to some information in the records on the basis that section 37 of the FOI Act applied.  The applicants sought an internal review and on 22 March 2022, TUSLA affirmed its original decision.  On 16 June 2022, the applicants applied to this Office for a review of TUSLA-�s decision.

In both their internal review request and application for a review to this Office, the applicants referred to information which, in their view should exist in particular in relation to a meeting which took place in June 2021, and which had not been provided to them.  TUSLA does not appear to have addressed this issue in its internal review decision.  During the course of the review, TUSLA reviewed its position and claimed that section 15(1)(a) applied to records of the meeting at issue.  TUSLA also revised its position on exemptions claimed for three of the records and now claims that section 42(m)(i) applies to these records.  TUSLA also released a small amount of additional information to the applicants during the review.

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 the submissions made by the applicants and to the submissions made by TUSLA in support of its decision.  I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether TUSLA was justified in its decision to refuse access, in whole or in part, to certain records under sections 37 and 42(m)(i) of the FOI Act, and under section 15(1)(a) of the Act, to any records apart from those already released on the ground that no further relevant records exist or can be found.  Any records or parts of records which have been released are no longer within scope of this review.

TUSLA identified a significant number of records as duplicates of other records in the files.  I advised the applicants that I intended to exclude these from the scope of this review.  They confirmed their agreement to these records being excluded.     

Therefore, the scope of this review is limited to the information in File 1 records 64, 112 and 128 refused under section 42(m)(i), the withheld information in the remaining records refused under section 37, and to any records, apart from those already released, refused under section 15(1)(a) of the Act on the ground that no further relevant records exist or can be found.

Preliminary Matters                                                                        

Section 18

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.

Analysis and Findings

Section 15(1)(a)

TUSLA-�s position is that section 15(1)(a) applies to records of a meeting held between the applicants and TUSLA in June 2021.  Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Where a body relies on section 15(1)(a), the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. It is not generally the Commissioner-�s role to search for records.

During the course of the review, TUSLA carried out further searches for these records and provided details of these searches.  While I do not intend to set out the details of the searches TUSLA say were carried out in full, I can say that they included searches of electronic and hard copy file storage in the relevant offices, and that relevant staff were contacted to ascertain if they held any records of the meeting.  I wrote to the applicants and advised them of TUSLA-�s position, providing details of the searches TUSLA said it carried out. In response, the applicants provided some further details of the meeting which were put to TUSLA.  Despite this information and further searches, TUSLA was unable to identify any relevant records.  TUSLA accepted that records of such a meeting would normally be expected to exist and outlined the normal process for creating such records.  TUSLA also pointed out that, at the time of the meeting, it was dealing with the impact of a cyber attack which affected access to its ICT systems, and outlined the process which should have been followed at that time.  Unfortunately, no records relating to this meeting have been located.  TUSLA also acknowledged the applicants-� dissatisfaction with the lack of records and expressed its deep regret that no records can be found, despite the extensive searches which have been undertaken.

Having considered TUSLA-�s explanation as to why these records do not exist or cannot be found, I am satisfied that TUSLA has taken all reasonable steps to ascertain the whereabouts of the records sought. I find that TUSLA was justified in refusing access to records relating to the meeting held in June 2021 under section 15(1)(a) of the Act.

TUSLA indicated that it was willing to follow up with the applicants regarding this meeting and I understand that it has since done so. 

Section 42(m)(i)

TUSLA refused access to information in three records, File 1 records 64, 112 and 128 under section 42(m)(i).

Section 42(m)(i) provides that the FOI 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 given information to FOI bodies in confidence 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 supplier of information. The second is that the information provided must have been provided in confidence, while the third is that the information provided must relate to the enforcement or administration of the law.

First Requirement

The applicants-� request included a request for details of anonymous complaints or referrals made to TUSLA about their family.  The applicants expressed the view that the detail contained within the anonymous referrals could be released without releasing the identities of those who submitted the referrals.  According to TUSLA, nature of the information could reasonably be expected to reveal or lead to the revelation of the identity of the person who provided the information.  Having examined the records, I find that the release of the withheld information in the records could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. I am satisfied that the first condition is met.

Second Requirement

The second requirement is that information must have been provided in confidence. The records at issue contain information on child protection concerns. This Office accepts, as a general proposition, that the purpose of section 42(m)(i) is to protect the flow of information from the public which FOI bodies require to carry out their functions relating to the enforcement or administration of the law and that the disclosure of the identities of complainants could reasonably be expected to have a detrimental effect on other people giving such information to those bodies in the future. Given my finding that the release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information, I find that the information was provided in confidence in this case. I am satisfied that the second condition is met in this case.

Third Requirement

The third requirement is that the information provided relates to the enforcement or administration of the law. TUSLA has statutory responsibilities under the Child and Family Agency Act 2013 and the Child Care Act 1991 to address child protection concerns notified to it.  As the records at issue concern child protection concerns, I am satisfied that the third requirement is met in this case.

As each of the requirements have been met, I find that section 42(m)(i) applies to the refused information in File 1 records 64, 112 and 128 for which it has been claimed.

Section 37

TUSLA refused access to the withheld information in the remaining records within the scope of this review in full or in part under section 37 of the FOI Act.  Section 37(1) 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. The section does not apply where the information involved relates to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (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 (commonly known as joint personal information). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual.

The records at issue are social work records relating to the applicants-� and their children-�s interaction with TUSLA.  Having examined the records, and having regard to section 18 of the FOI Act, I am satisfied that the release of the withheld information would involve the disclosure of personal information relating to individuals other than the applicants and/or their children, or joint personal information of the applicants and/or their children and other individuals which is inextricably linked, and that section 37(1) applies.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicants; (b) the third parties have not consented to the release of their 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. I find that section 37(2) does not apply to the withheld information.

Section 37(5)

Section 37(5) provides that a request that would fall to be refused under section 37(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 the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.

In relation to the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (-�the eNet Case-�), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also 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. It is noted that a true public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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 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 considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. Having examined the records at issue in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, having regard to section 18, I find that section 37(1) of the Act applies to the records or parts of records for which it has been claimed.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA-�s decision.  I find that TUSLA was justified in refusing access to the withheld information in File 1 records 64, 112 and 128 under section 42(m)(i), and to the withheld information in the remaining records within the scope of this review under section 37 of the FOI Act.  I also find it was justified in refusing access, under section 15(1)(a), to further records sought by the applicants other than those located and considered for released.          

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.

Brenda Lynch 
Investigator