Whether TUSLA was justified in its decision to refuse access to records relating to the applicant under sections 35 and 37 of the FOI Act on the basis that they contain both information that was given in confidence to TUSLA and personal information relating to third parties

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 16 February 2015 TUSLA received a request from the applicant for copies of correspondence and reports relating to him held by the Health Service Executive and TUSLA. In its decision of 13 March 2015 TUSLA identified nine records coming within the scope of the applicant's request, and part granted access to two records, redacting certain information under section 37(1) of the Act. It refused access to five records under sections 35(1)(a) and 37(1) of the FOI Act, and refused access to the two remaining records under section 37(1) only.

On 27 March 2015 TUSLA received a request from the applicant for an internal review of that decision. On 9 April 2015, TUSLA affirmed its original decision. On 23 April 2015 the applicant submitted an application to this Office for a review of that decision.

I note that during the course of this review Mr Benjamin O'Gorman of this Office informed the applicant of his view that TUSLA was justified in its decision to refuse access to the records at issue. The applicant indicated he wished to proceed to a formal binding decision.

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 to the contents of the records at issue.

Scope of Review

This review is concerned solely with the question of whether TUSLA was justified in its decision to redact certain information from two records and to refuse access to a further seven records.

Preliminary Matters

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. I should also explain that section 13 of the FOI Act provides that in deciding whether to grant or refuse a request any reason that the requester gives for the request must generally be disregarded, except insofar as such reasons are relevant to the consideration of the public interest provisions of the Act.

I should also explain the approach this Office takes to the granting of access to parts of records. 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

During the course of this review, the applicant expressed concern about one record identified in the schedule of records provided by TUSLA as dating from 2010. TUSLA has since clarified that the reference to 2010 in the schedule was an administrative error and that the record was dated 4 December 2014. I further note that Mr O'Gorman informed the applicant of this error.

Analysis and Findings

As TUSLA has relied on section 37 in respect of all the records at issue in this review, I will consider the applicability of section 37 first.

Section 37(1) of the FOI Act provides that a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that a public 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 referred to as joint personal information.

Having reviewed the relevant records and redactions, I am satisfied that with one exception, all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. I note that one small part of record 4 (page 12) identifies the applicant as the person against whom allegations were made. This information is personal information relating solely to the applicant but it is also clearly already known to the applicant and having regard to this Office's approach to the granting of access to parts of records as outlined above, I find that TUSLA is not required to provide access to that part of the record.

Accordingly I find that section 37(1) of the Act applies to the records at issue.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(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 37(5) of the FOI Act 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 would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner, available at www.oic.gov.ie. In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 28(5)(a).

The applicant contends that access to the information is essential so that he can defend the case made against him. It seems to me that this is, in essence, a private interest as opposed to a true public interest. Nevertheless, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 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 at issue in this case is of a particularly private and personal nature. When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. While there is a public interest in openness and transparency in the manner in which TUSLA processed a very sensitive referral concerning children in contact with the applicant, the question I must consider is whether the public interest in granting access 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 37(5)(a) does not apply.

Accordingly, I find that TUSLA was justified in its decision to refuse access to the records at issue under section 37(1) of the Act.

Given my finding that section 37(1) applies to all of the records at issue, there is no need for me to consider the application of section 35(1)(a) of the Act in this case.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of TUSLA in this case.

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 four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator