Whether TUSLA was justified in its decision to redact certain information from records released to the applicants under section 28 of the Act and whether it was justified in its decision to refuse access to further relevant records under section 10(1)(a) of the Act

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 14 May 2014 the applicants submitted a request to TUSLA for all records relating to their daughter. On 8 September TUSLA released 14 of 16 records it had identified as coming within the scope of the request, subject to redactions under section 28 of the Act in order to protect the personal information of third parties, and refused access to two other records. The records to which access was refused were copies of records otherwise provided to the applicants. Pages 2-5 are a copy of pages 8-11, pages 6 is a copy of page 12, page 7 is a copy of page 13, and page 22 is a copy of pages 23 and 24 (reproduced on one page). For the purposes of the original decision, pages 2-7 is one record to which access was refused. Page 22 is the other record to which access was refused.

On 28 September 2014, the applicants sought an internal review of this decision, as they were not satisfied that all relevant records had been considered for release. On 7 November 2014, TUSLA released some additional information contained in the records to the applicants that had previously been redacted under section 28 of the Act and upheld the remainder of its original decision.

On 3 February 2015 the applicants submitted an application to this Office for a review of that decision, as they remained of the the opinion that TUSLA had not considered all relevant records for release. In conducting this review I have had regard to correspondence between the applicant and TUSLA, to correspondence between the applicant and this Office, to correspondence between TUSLA and this Office, and the contents of the records released to the applicants.

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 to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned with the questions of whether TUSLA was justified in redacting information contained in the records released under section 28 of the Act and whether it was justified in refusing access to further records sought by the applicants under section 10(1)(a) of the Act on the basis that no further records exist or could be found.

Preliminary Matters
Although I am obliged to give reasons for my decision, Section 43(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. I should also explain that section 8(4) of the FOI Act provides that in deciding whether to grant or refuse a request any reason that the requester gives for the request has to be disregarded.

Analysis and Findings

Section 28
TUSLA redacted certain information from a number of the records that it released to the applicant under section 28 of the FOI Act. Section 28(1) provides that access to a record shall be refused if access would involve the disclosure of personal information of parties other than the requester. Having reviewed the relevant records, I as satisfied that the withheld information is personal information relating to third parties other than the applicants or their daughter and that section 28(1) of the Act applies.

Section 28(2) of the FOI Act sets out certain circumstances in which the exemption at section 28(1) does not apply. I am satisfied that none of those circumstances arise in this case. That is to say, (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 28(5) of the FOI Act provides that access to the personal information of a third party may 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 would be to the benefit of the third parties concerned and that section 28(5(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs the public interest of the right of privacy of the person to whom the information relates.

The FOI Act recognises a public interest in ensuring the openness and transparency of public bodies in how they perform their functions. The FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 28 and in 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. 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.

The information that was redacted by TUSLA in this case is of a particularly private and personal nature. While there is a public interest in openness and transparency in the manner in which TUSLA processed a very sensitive referral concerning the applicants' daughter, this public interest has been served, to some extent, through the release of the vast majority of the information contained in the records at issue. The question I must consider is whether the public interest in disclosing the remaining information outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom that information relates. In my view, it does not. I find, therefore, that section 28(5)(a) does not apply.

Having considered the redactions made to the records released to the applicants, I find that TUSLA was justified in its decision to withhold those parts of the records under section 28(1) of the Act.

Section 10(1)(a)
As I have indicated above, the applicants were not satisfied that all relevant records had been considered for release by TUSLA. Accordingly, section 10(1)(a) of the Act is relevant. That section provides that a request for access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases is to review the decision of the public body and to decide whether that decision was justified. This means I must have regard to the evidence available to the decision make and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No.18 M.C.A. available on this Office's website, www.oic.ie).

The applicants contend that certain records of meetings held between TUSLA and the applicants should exist and been retained on their file. This Office is concerned with ensuring public access to extant records in accordance with the provisions of the FOI Act. The FOI Act does not provide for a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exists. The question I must consider is whether TUSLA has taken all reasonable steps to locate all relevant records held by it coming within the scope of the FOI request.

During the course of the review, and following correspondence with the applicants, Mr Art Foley of this Office contacted TUSLA to clarify what searches had been undertaken to identify all relevant records and he sought specific information from TUSLA in relation to certain types of records that the applicants believed to be outstanding. Subsequently, TUSLA informed this Office that during the course of preparing its response, additional records within the scope of the applicants' request had been found. It stated that two files containing information within the scope of the request exist, namely a Fostering file and a Duty file. During the processing of the request, a search was conducted on the Social Work Information System which indicated the existence of a file created by the Duty Team. TUSLA stated that the Duty file was the only file that was processed and that the Fostering file was not processed in response to the applicants' FOI request. TUSLA further stated that files would not be held in any other place and that the Social Work Departments are satisfied that no other records exist in relation to the applicants

Accordingly, I find that in the circumstances of this case, TUSLA was not justified in its decision to refuse access to further records under section 10(1)(a) of the Act. As the records held on the Fostering file were not considered for release, I am satisfied that the appropriate course of action to take is to direct TUSLA to undertake a resh decision making process in relation to those records.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended), I hereby vary the decision of TUSLA in this case. While I uphold its decision to refuse access to certain third party personal information from the records released under section 28 of the Act, I annul its decision to refuse access to further relevant records and I direct it to undertake a fresh decision making process in respect of the relevant records that were discovered during the course of this review.

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.

Stephen Rafferty,
Senior Investigator