Whether TUSLA was justified in refusing the applicant's request for access to all records relating to her on the basis of sections 22 and 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan who is authorised by the Information Commissioner to conduct this review

Background

At the outset I wish to highlight two points. Firstly, the Children and Family Services functions of the HSE were transferred to TUSLA on 1 January 2014, but, under a memorandum of understanding, the Health Service Executive (HSE) performs a liaison role for TUSLA in relation to certain matters. For the purposes of this review, references to TUSLA should be read as the HSE where appropriate. Secondly, the applicant acted through her solicitor throughout this FOI request.

In a request dated 19 March 2014, the applicant sought access to "any or all records held" by TUSLA in relation to her. TUSLA failed to make a decision within the time allowed and consequently the applicant applied for an internal review. On 17 July 2014, TUSLA issued an internal review decision which identified 15 volumes of files relating to the applicant, her birth parents, foster parents, her sister, her brothers and foster siblings.

In total, 2,545 records were identified as being covered by the request at internal review stage. 1,427 records were released to the applicant in full; 328 were released in part; section 22(1)(a) was applied to 64 records; section 22(1)(b) was applied to 392 records and access to 334 records was refused on the basis that the records were outside the scope of the request and/or contained the personal information of third parties as set out in section 28 of the FOI Act.

On 23 October 2014, the applicant applied to this Office for a review of TUSLA's decision to refuse access to the records outlined above.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the provisions of the FOI Act and to the submissions made by TUSLA and by the applicant. I have also examined the files which were provided to this Office for the purposes of the review and the correspondence that was exchanged between the parties.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned with the records to which access was refused in whole or in part pursuant to sections 22 or 28 of the FOI Act. It should also be noted that during the course of this review a further 19 records coming within the scope of the applicant's request were identified by TUSLA following enquiries from this Office and these are dealt with in this review.

Analysis and Findings

Preliminary Matters
Before dealing with the relevant exemptions, there are some preliminary points I wish to make.

The first point to note is that, under section 8(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act). It is worth mentioning that it is outside the remit of this Office to carry out any investigation or make any findings on how the public body carried out its duties in the circumstances surrounding a review, but rather the Commissioner's role is to determine whether or not records were properly withheld under the FOI Act.

The second point has to do with the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 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 13 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.

While I am required by the FOI Act to give reasons for my decision I must also have regard to section 43(3) of the Act which requires me to take all reasonable precautions to prevent disclosure of information contained in an exempt record. This means that the extent of the reasons which I can give in this case is limited. In some instances, the applicant's submissions assume that redacted parts of records contain certain information which is not always the case. However, I cannot describe the content of such records in any detail.

Finally, with certain limited exceptions (e.g. section 28(2)(a) which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58)

Section 22(1)(a) - Legal Professional Privilege

Section 22(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. 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 ("legal advice privilege"), and
confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation ("litigation privilege").

TUSLA has not said whether it is relying on legal advice privilege or litigation privilege. From examination of the records for which this exemption is claimed, it is clear that the correspondence relates mainly to care proceedings involving the applicant and her family in respect of which litigation has most likely been completed. However, I am satisfied that the records form part of a continuum of communications between the client and the advisers where information is passed between them with the aim of keeping both informed so that advice may be sought and given. Therefore that the exemption relating to legal advice privilege applies. I find that TUSLA's refusal under section 22(1)(a) is justified in relation to these records.

I should say here also that many of these records contain the personal information of individuals other than the applicant, in addition to her personal information and that, had I not found them to qualify for legal professional privilege, I would have to include them in my consideration of the section 28 exemption in this decision.

Section 22(1)(b)
Section 22(1)(b) of the FOI Act (as amended) provides that:-
A head shall refuse to grant a request under section 7 if the record concerned -
"...(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court,..."

TUSLA cited this exemption in respect of 392 records which comprised court reports related to care proceedings. I note that it is a mandatory exemption i.e. that it does not allow the exercise of discretion on the part of the decision maker.
The In Camera Rule
The in camera rule (i.e. that proceedings be held otherwise than in public) applies to Court proceedings in accordance with Section 29 of the Child Care Act 1991. It is a contempt of Court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. It is clear from my examination of the records that they were prepared for the Court in the context of proceedings under the Child Care Act. I am satisfied tha the records identified in the schedules as exempt under section 22(1)(b)y are covered by the in camera rule.
In her judgment in LK and the Information Commissioner [2013] IEHC 373 which addressed records created in the context of child care proceedings, O'Malley J. stated, referring to the judgment of O'Neill J. in EH v. Information Commissioner [2001] 2 IR 463, that
"The Freedom of Information Act is not, as O'Neill J. makes clear, intended to be used in a manner that bypasses the Constitutionally established structures for the administration of justice."
O'Malley J. went on to find that:
"The Information Commissioner has no authority to disregard either the statutory provisions relating to the in camera nature of child care proceedings ...... Neither the status of the appellant as a party to District Court proceedings not[r] the purpose for which she wishes to use the report are relevant to his powers in this respect."
I am satisfied that the position as set out in LK and the Information Commissioner applies here and as I am not aware of the existence of any prior judicial authority for the release of these records, I consider that release of these records to the applicant on foot of her FOI request would constitute contempt of Court. I find, therefore, that section 22(1)(b) applies to the records identified as emanating or derived from the proceedings involving the applicant and her family.

Section 28 and Personal Information

Personal information is defined in section 2 of the FOI Act 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 twelve specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(i) information relating to the educational, medical, psychiatric or psychological history of the individual," and "(vi) information relating to the religion, age, sexual orientation or marital status of the individual".

Section 28(1) provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information, including personal information relating to a deceased individual.

It is clear that the records at issue in this case disclose the personal information of parties other than the applicant and that much of this information is of a private and sensitive nature. The information that has been redacted or refused by TUSLA can broadly be broken into two categories; information relating to third parties and joint personal information relating to the applicant and other individuals. Access to 334 records was refused on the basis that they were outside the scope of the request. Arguably, this was done because the records do not refer to the applicant. However, given the type and nature of these records I an satisfied that they do relate to the applicant. I consider that section 28(1) applies to such records for reasons set out below in the context of personal information of other individuals where it appears in the records with the applicant's personal information. In particular, there is a minority of these records which contain some small references to the applicant, either directly or indirectly. For example, there are some references to the "the children" which could be construed as including the applicant. Predominantly, such references occur in the context of a record of a conversation with a third party and therefore are more appropriately dealt with under section 28(5B) below.

While TUSLA has largely relied on section 28(1) of the FOI Act in respect of the 328 records that were released in part, it seems to me that section 28(5B) is the more appropriate exemption in relation to these records. Section 28(5B) of the FOI Act provides that where a record contains joint personal information, that is, personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected. The representative for the applicant in submissions to this Office argued that the redacted information goes to the reasons why the applicant was taken into care and therefore the information must be related to her. Given the nature of these records there is a considerable overlap between the personal information of the applicant and the personal information of her family members and foster family members.

In the normal course, an FOI requester will be entitled to access his or her own personal information; but where the requester's personal information is inextricably linked with the personal information of one or more third parties, as is the case here, then section 28(5B) of the FOI Act applies. I find that the withheld parts of the records identified in the schedules by reference to section 28, are exempt either under section 28(1) and/or section 28(5B).

Section 28(2)

There are some circumstances, provided for at section 28(2), in which the exemptions at sections 28(1) and 28(5B) do not apply. Having examined the withheld details, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (c) that the information is not of a kind that is available to the general public; (d) that 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) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

A further exception - that at section 28(2)(b) - provides for the release of information that is exempt under sections 28 where the third parties whose personal information is at issue have consented to the release of that information. In this case, there is no evidence that the family members or other third parties involved have consented to their personal information being disclosed. I find, as a matter of fact, that they have not consented to the release of their personal information and that, accordingly, section 28(2)(b) does not apply.

Section 28(5) and the Public Interest

Section 28(5) provides that a record, which is otherwise exempt under section 28, 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 do not consider that the release of the information sought would benefit the third parties to whom it relates, as envisaged by section 28(5)(b) of the FOI Act.

Section 28(5)(a) - The Public Interest
In order to apply the public interest test provided for at section 28(5)(a), it is necessary to identify the public interest which would be served by the release of the records and make a judgement as to whether, on balance, that public interest outweighs the public interest in protecting the privacy rights of the individuals concerned. 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 28 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 28(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 the right to privacy.

In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 [more commonly referred to as the "Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".
The applicant highlighted the importance of an individual understanding the reasons for their admission to care and while I have sympathy for this assertion I must take account of the provisions of the FOI Act and the decision in the Rotunda Hospital case as set out above. In my view, the information which the records contain is inherently private. It relates principally to the histories of the applicant's family members. I consider this to be highly sensitive information, which is extremely personal to the third parties concerned. I do not doubt the importance of the applicant's desire to understand the circumstances surrounding her own history. However, I cannot identify a public interest which would override the Constitutional rights to privacy of the family members and foster family members to whom these records relate. Further, it should be noted that the records that have already been released by TUSLA contain a great deal more information than, strictly speaking, fell to be released under the FOI Act in that a considerable amount of information about family members was, in fact, released. I am not satisfied that the significant invasion of the privacy rights of the third parties, which would be the consequence of releasing the records at issue here, is warranted. Having considered the matter very carefully, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find therefore that section 28(5)(a) does not apply in this case.

Overall Finding

The majority of the records at issue in this review constitute the personal information of the applicant, her family members and some additional third parties. I find that the records at issue are exempt by virtue of sections 28(1) and 28(5B), and these exemptions are not displaced by any of the overriding provisions within section 28. The additional 19 records which were identified during the course of this review together with copies of records 89 and 103 of volume 2 from the original schedules which the applicant says were not included in the records already released should be released by TUSLA to the applicant subject to the redaction of third party personal information (i.e. identifying information of other individuals that does not relate solely to the applicant not including references to public servants in the course of carrying out their duties).

For the sake of clarity, I would add that the applicant claimed that access to records 63, 81, 82, 90 and 109 of volume 2 and records 1, 7-10, 61, 123 - 126 of volume 3 was refused without any reason having been given. However, I believe that this arose from a misunderstanding of the reference key used throughout the schedules by TUSLA. Next to these records in the schedules is listed an "r" which stands for "release" and not "refuse". Consequently, there is no reason for refusal listed next to these records in the schedules and TUSLA's decision was to grant access to them.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of TUSLA to refuse access to the records at issue in this case. I find that it was justified in its decision to refuse access under sections 22(1)(a) and 22(1)(b) to the records so identified in the schedules and I find that section 28 applies to exempt the remaining records and parts of records. I direct the release of the additional 19 records identified during the course of the review and the omitted records highlighted above subject to the redactions of third party personal information in accordance with the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator