Whether Tusla was justified in refusing access to certain records concerning the applicant, or parts thereof, under section 37(1) of the Act on the basis that they contain personal information of other parties; in refusing access to a record under section 31(1)(a) of the Act on the basis that the record contains legal advice and in refusing access to further records on the basis that no further records exist or could be found

11 May 2023

Background

The applicant made a request on 14 December 2021 for a copy of any information Tusla has about her on computer or in manual form in connection with her former employment with Tusla. Following discussions between Tusla and the applicant, an agreement was reached to divide the applicant-�s request into 12 separate requests. In an email to the applicant dated 18 January 2022, Tusla explained that it would start with Request 1, whilst simultaneously conducting searches for Request 2 and shall follow that pattern until it has worked through all of the requests. This review concerns Request Number 3, for all records and correspondences held by four named staff members relating to the applicant for the years 2017-2021.

On 21 July 2022, the applicant requested an internal review as Tusla had not issued a decision on her request. In its internal review decision dated 12 August 2022, Tusla part-granted the applicant-�s request. It refused access to certain records, in full or in-part, under sections 31(1)(a) and 37(1) of the Act.

On 5 September 2022, the applicant applied to this Office for a review of Tusla-�s decision on the basis that Tusla did not provide her with all the available documents, that it omitted records from a named staff member and it redacted information from documents the applicant had written. In subsequent submissions to this Office the applicant provided further details of the basis for her appeal.

On 7 March 2023, I wrote to the applicant providing her with details of Tusla-�s submission to this Office, including details of the searches undertaken to locate the records at issue in this case and Tusla-�s response to the applicant-�s comments about additional records she is seeking. I also explained Tulsa-�s position that records held by the staff member who the applicant said it had omitted was the subject of -�Request Number 2-�. While the applicant replied noting the content of my letter, no substantive reply has been received to date.

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 applicant-�s comments in her application for review, her subsequent submissions to this Office and to the submissions made by Tusla in support of its decision. I have also examined the records at issue, as scheduled in Tusla-�s decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As noted above, Tusla and the applicant agreed to split her request into 12 separate FOI requests. In her submissions to this Office, the applicant noted that there is crossover between these requests which is confusing. While I understand that all 12 requests concern various matters relating to the applicant, it is important to note that this review is limited to Tulsa-�s decision on -�Request Number 3-� for access to records concerning the applicant held by the four named staff members.

Accordingly, this review is concerned with whether Tusla was justified under section 37 of the Act in refusing access to those records concerning the applicant held by the four named staff members on the basis that they contain personal information of other parties and whether Tusla was justified under section 31(1)(a) of the Act in refusing access to information contained in pages 1-4 of schedule 2 on the ground that it is legally privileged.

Furthermore, the applicant considers that further records should exist. Tusla-�s position is that no further relevant records exist or can be found that come within the scope of this request. This is, in essence, a refusal to grant access to relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, this review is also concerned with whether Tusla was justified in refusing to grant access to further records under section 15(1)(a) of the FOI Act.

Preliminary Matters

Before I consider the substantive issues arising, I would like to make a number of preliminary comments.

Firstly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Secondly, it is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Thirdly, 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.

Fourthly, although I am obliged to give reasons for my 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 contents of the records is limited.

Finally, it is worth noting at this point that while the applicant may already hold a number of the relevant records as a result of her communications with Tusla concerning the issues at the core of her request, I must have regard to the protections afforded in the FOI Act to the personal information of other parties contained in the records. It is important to note that the release of records under the FOI Act is regarded, in effect, as release to the world at large, given that the Act places no restrictions on the uses to which records released under FOI may be put.

Analysis and Findings

The records at issue in this case concern records held by four named staff members which primarily concern complaints and matters raised by the applicant about a number of work colleagues and the workplace culture she experienced. In it submissions to this Office Tusla noted there was a significant duplication of records in this request as a number of HR staff were named who held duplicate records. Tusla released a number of records to the applicant where those records relate solely to her and part-granted other records. The majority of the information which Tusla redacted from the records under section 37(1) of the Act is information concerning individuals who were the subject of the applicant-�s complaints and includes communications between Tusla and these individuals in the course of investigating these complaints. Tusla also refused certain information under section 37(1) about an external investigator engaged to examine the complaints, including his CV, home and email addresses and mobile telephone number.

Section 37(1) -� Personal Information of other parties

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 relating to an individual other than the requester. The section does not apply where the information involved relates to the requester (subsection (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 (commonly known as joint personal information). In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, 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 (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6), i.e. personnel records of staff of FOI bodies.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

However, the exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally and I am satisfied that this also applies to service providers.

In her application to this Office, the applicant commented that Tusla redacted information from documents and emails which she wrote. As I explained in my letter of 7 March 2023 to the applicant, it may well be the case that some of the third party personal information in the records is known to her or indeed is contained in correspondence between the applicant and Tusla. However, this does not change the fact that such information may be exempt from release under the FOI Act. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.

The information redacted from the records at issue in this case comprises either personal information relating solely to parties other than the applicant or information relating to other parties which is inextricably linked to personal information relating to the applicant (joint personal information). I am satisfied that the release of the information would involve the disclosure of personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section Sections 37(2) and 37(5).

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. 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 benefit the person to whom the information relates. I see no basis for finding that the release of the redacted information would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply 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 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 should be distinguished from a private interest.

On the matter of 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 in The 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 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 in both judgments 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.

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). Furthermore, 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, I have had regard to the fact 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. It seems to me that Tusla sought to release as much information as it could to the applicant whilst also seeking to protect the privacy rights of the third parties concerned. 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 in granting access to the personal information redacted by Tusla outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that Tulsa was justified in refusing access to the personal information contained in the records under section 37(1) of the Act.

Section 31(1)(a) -� legally privileged information

Tusla refused access to information contained in pages 1-4 of the records listed in Schedule 2 under section 31(1)(a) of the Act on the basis that it relates to legal advice it sought and received. (The schedule provided by Tusla to this Office mistakenly refers to section 32(1)(a)).

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

In its submissions to this Office, Tusla said that pages 1-4 were created for the purpose of receiving legal advice from its external legal advisers. It said that this record was solely brought into existence for the purpose of seeking legal advices and the content held therein is specific to the seeking of these advices. In its submissions to this Office, Tusla said that the initial section of page 1 of these records, which contains a case summary, could be released to the applicant with no impact on the remaining part of the document which specifies advices to be sought. Tusla subsequently released this extract of page 1 to the applicant during the course of this review.

Having examined the remainder of the record, I am satisfied that it was created for the purpose of obtaining legal advice and also contains the advice given. As such, I am satisfied that the record attracts legal advice privilege. Accordingly, I find that Tusla was justified in refusing access to the record on the basis of section 31(1)(a).

Section 15(1)(a) -� Adequacy of search

In her submissions to this Office, the applicant said she believes that further records ought to exist in relation to (i) a disciplinary matter, (ii) a decision to refuse her an upgrade and (iii) the decision to stop investigating her complaint.  It is Tusla-�s position that all relevant records have been identified that come within the scope of this particular request and that every effort has been made to source all records relating to the applicant held in both hard and soft copy. This is effectively a refusal to grant access to any further records under section 15(1)(a) of the FOI Act.

Section 15(1)(a) provides that an FOI body may refuse to grant a request where the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the 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 and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

Tusla provided this Office with a description of the searches it undertook to locate records relevant to the applicant-�s request, details of which were provided to the applicant during the review.

In its submissions to this Office Tusla said, the scope of this FOI request did not specify the particular records referred to at (i)-(iii) above. It said that it is not Tusla-�s position that such records do not exist. Tusla said that if it were a case that such records specifying these processes were located in the searches conducted for records held by the named individuals in this case, those records would have been included as part of Tusla-�s decision on this request.

In regard to its record management practices in relation to the records sought in this case, Tusla said an electronic file and/or a hard copy record file is created in the Employee Relations (ER) Department for the staff member, where records relevant to the HR process which involves the ER Department would be retained. Such records held would vary depending on the staff member-�s interaction within the ER Department and the varying degrees of interactions which may have been undertaken as part of the employment process within Tusla. In relation to the scope of this request regarding the named staff members and the years stipulated, Tusla said that searches were undertaken in the applicant-�s file for any such records. Tusla also said that email searches were conducted in relation to all of the named staff members and any relevant emails were considered in line with the scope of this request. Tusla said that those staff members that have since moved post or have left the Agency had their emails accessed through an Exceptional Access request through its ICT Department and these were searched for records coming within the scope of this request. Tusla said that searches were also conducted within protected electronic Share Drives/Shared Folders, which would have a defined number of people that can access same. Tusla said the search criteria it used included the applicant-�s first name, surname, full name and initials. Tusla said that comprehensive searches were conducted by two staff members, in conjunction with the Corporate FOI Unit, who peer reviewed and double checked searches undertaken as part of the request process.

In regard to the applicant-�s comments about records relating to the disciplinary matter, the employee upgrade and the decision to stop investigating her complaint, it is Tusla-�s position that if such records existed within the parameters of the applicant-�s request they would have been located during the searches it carried out. Tusla said that the staff referenced in this request would have provided records relating to the highlighted matters if they held such records or if such records emerged as part of the extensive search process. Tusla explained that it is not beyond possibility that another staff member, possibly a line manager, would have been involved in these matters but was not included as part of the scope of this particular request. Tusla noted that this case relates to the third of twelve requests it has from the applicant and suggested that it is possible that the records referred to by the applicant may fall to be considered within one of her other requests.

It is important to note that the FOI Act is not concerned with access to records that a requester believes ought to exist. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether searches have been reasonable.

Having regard to Tusla-�s explanation of its records management practices, to the details of the searches undertaken, and in the absence of evidence to suggest that other relevant searches should have been undertaken, I am satisfied that Tusla has taken all reasonable steps to locate the records sought in this case. Accordingly, I find that Tusla was justified in its effective refusal to release any further relevant records to the applicant under section 15(1)(a) of the FOI Act on the basis that no further relevant records exist or could be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla-�s decision to refuse access to the information it redacted in the records at issue on the basis of section 31(1)(a) and 37(1) of the Act. I also affirm its decision to refuse access to further relevant records on the basis that no further relevant records exist or can be found.

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.

Richard Crowley
Investigator