Whether TUSLA was justified in refusing access to records concerning the applicant and his nephews

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

Background

While the Children and Family Services functions of the HSE were transferred to TUSLA on 1 January 2014, the HSE provides administrative support to TUSLA in relation to the FOI Act. For the purposes of this review, references to TUSLA should be read as the HSE where appropriate.

On 15 November 2014, the applicant made an FOI request to TUSLA for the following:

1. A copy of a report compiled by the Family Centre of a hospital in relation to his two nephews. The applicant stated that the boys' mother had signed a document at the Family Centre authorising release of the report to him;

2. All records containing information relating to him, as held by the HSE (South) Social Work departments, now known as TUSLA. He said that this would include: (i) all letters he had sent the Social Work departments in relation to his nephews; (ii) all notes taken following telephone calls he made to the Social Work departments with regard to his nephews; (iii) all documents/notes/reports where his name is stated (in both hard copy and electronic format); and (iv) all audio and/or visual recordings where his name is mentioned.

TUSLA appears to have split responsibility for the request between two decision makers. Two separate letters dated 29 January and 25 February 2015 issued, which I am satisfied together comprised TUSLA's decision. The letter of 29 January 2015, which appears to have concerned social work records, said it was partially granting the applicant's request. It said that certain details had been withheld on the basis that they were exempt under sections 35 and section 37 of the FOI Act (which concern information given in confidence and personal information). The letter of 25 February 2015, which concerned the Family Centre records, told the applicant that it was refusing to release the records concerned. It withheld an unspecified number of records under section 37 of the FOI Act.

On 4 March 2015, the applicant sought an internal review of TUSLA's decision. TUSLA did not reply to this application within the statutory timeframe, effectively affirming its earlier decision on the applicant's request. He then applied to this Office for a review. That review (Case Number 150135) was conducted only in respect of TUSLA's non-reply to the internal review application. It was closed when, on 17 June 2015, TUSLA outlined its effective position to the applicant, which was that it was affirming the initial decision on the request.

On 1 July 2015, the applicant made an application to this Office for a review of TUSLA's partial refusal of his request. Although invited to, he did not make any further submissions.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office and TUSLA, and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not TUSLA has justified its refusal to grant access to some of the records requested by the applicant. It does not extend to examining issues such as delays in dealing with the request or internal review application, or the legal nature of the letter of 17 June 2015 (issues commented on by the applicant in his application to this Office).

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While TUSLA has released details from a small number of records while redacting other parts, I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

The Records At Issue

Access to two Family Centre files was refused. Given that the files concern the applicant's nephews, and also given the sensitive subject matter, I do not consider it appropriate to list or describe the records. The Social Work file, containing three records (a note of a meeting; a letter; and social work notes), was partially released.

I am satisfied that the records under review include the report(s) requested at point 1. of the request, as well as paper records sought at point 2(iii). While TUSLA did not supply this Office with electronic versions of the records relevant to part 2(iii), the findings I make below in relation to the paper records apply equally to electronic versions of such documents.

The records considered for release do not contain any records that appear relevant to points 2(i) or (ii) of the request. When asked by the Investigator to explain the absence of such records, TUSLA said that if the applicant supplied the approximate dates of correspondence or the name of the Social Workers he had contacted, it would conduct further searches in this regard. I will deal with these aspects of the request separately.

Furthermore, when providing copies of the records to this Office, TUSLA did not supply records relevant to part 2(iv) of the request. It subsequently confirmed to the Investigator that it holds copies of video recordings of interviews with both the applicant's nephews. It said that the "recordings were considered to be exempt under section 37 as personal information of others and joint personal information." It submitted that the information is inextricably linked with information about other third parties. TUSLA is of the view that it is impracticable to extract the name of the applicant from the video. It referred to the release of such information 'to the world at large' and the possible harm that may result "to two vulnerable children".

Having regard to TUSLA's explanation, I have decided not to require it to provide me with, or to examine, copies of the videos. While it may be that these records refer to the applicant by name, they also concern the children whose interviews were being recorded. It is incontrovertible that the videos contain an image of the child or children in connection with references to the applicant's name. This would be the case whether his name is referred to either by the children or TUSLA staff. I deal with these and the other records below in the context of personal information.

Findings

Information About Minors

Section 37(8)(a) of the FOI Act, and associated Statutory Instruments, together provide for the release of a minor's personal information to parents or guardians in certain circumstances.

The applicant's nephews are minors. He has not argued to either TUSLA or this Office that he is their guardian, nor do the records indicate this to be the case. Accordingly, I find that the applicant is not entitled to access, further to the provisions of section 37(8)(a) of the FOI Act, any material in the records comprising the personal information of his nephews, or comprising the joint personal information of the applicant and his nephews.

Section 37(1) and Section 37(7) - Personal Information

Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person seeking the record. Section 37(7), also subject to other provisions of section 37, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties.

Section 25(3) precludes me from elaborating on the nature of the withheld details. Having examined the records at issue on the Family Centre files, and the details withheld from the Social Work records, I can say that the withheld material concerns sensitive child protection matters. I am satisfied that the bulk of the material withheld relates entirely to parties other than the applicant and is the personal information of those parties. I find such material to be exempt under section 37(1) of the FOI Act.

I am satisfied that the remaining material withheld from the files concerned relates to the applicant and his nephews and/or other parties.

In his application to this Office, the applicant said he had not sought the names of any third parties and had only sought information that was recorded in relation to his name. He said that, having already been given a partial disclosure of records, with third party names redacted, he did not see why the same procedure could not be applied by redacting all documents relevant to his request.

In that application, the applicant also referred to a decision on the Commissioner's website (Case No. 050259). While he said he considered this decision to appear very similar in parts to his own experience, he did not elaborate on what elements he considered relevant to the case at hand. I have examined that decision of March 2007 and I do not believe it sets a precedent by which I am bound in this or any other review. Equally, the fact that TUSLA has given the applicant partial access to the records on the Social Work file does not bind me to direct that the Family Centre records should similarly be released in part.

Furthermore, I do not consider that the issues considered in Case No. 050259 are equivalent to those in this case. As mentioned above, the bulk of the material at issue concerns parties other than the applicant. I should make it clear that I do not consider any references in the records to public servants to comprise personal information and any references in this decision to third parties or parties other than the applicant do not encompass references to public servants (which was the main issue in Case No. 050259).

The context of a written document can identify a party to which it relates, even if that person's name is redacted. I consider that to direct partial release of the remaining records (including the material sought at part 1. of the request), such that all information that would identify parties other than the applicant is withheld, would render the ensuing copies of those records misleading.

In these circumstances, I find that the personal information about the applicant is inextricably linked to the personal information of the other third parties to whom the records relate. Accordingly, these records contain what is generally described as "joint personal information" of the applicant and other parties. I find such material to be exempt under section 37(7) of the FOI Act.

In so far as the videos refer to the applicant by name (including any references to the applicant made by public servants), I consider it impossible to separate such details from those about the child whose interview was recorded. Thus, I consider such video excerpts to comprise personal information of the children which is inextricably linked to that of the applicant. I therefore find such material to be exempt under section 37(7) of the FOI Act. It also seems to me that those excerpts from the videos that do not mention the applicant contain an image of the child or children and therefore comprise their personal information, in addition to the personal information of any other parties to whom the children may refer. Such information would be exempt under section 37(1) of the FOI Act even if the applicant's request (in so far as the videos are concerned) had not excluded such material in the first instance.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemptions at sections 37(1) and 37(7) do not apply.

Having examined the withheld details, I am satisfied that none of the circumstances identified at section 37(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 37(2)(b) - provides for the release of information that is exempt under sections 37(1) or (7) where the third parties whose personal information is at issue have consented to the release of that information. The applicant has said that the children's mother has consented to the release of the report(s) sought at part 1. of his request.

I am satisfied that the record(s) concerned also include personal information about persons other than the applicant, his nephews and their mother. The children's mother is not legally entitled to consent to the release of personal information about such other parties. In such circumstances, I am satisfied that the applicant is not entitled to access to the report(s) sought at part 1. of his request under section 37(2)(b) of the FOI Act.

The applicant has made no argument that consent has been given to the release of the other records he has sought and I have no reason to consider this to be the case. I find no right of access arises to the other records at issue under section 37(2)(b).

Section 37(5)

Section 37(5) provides that a record, which is otherwise exempt under sections 37(1) and/or 37(7), 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 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

Section 37(5)(a) - The Public Interest

The July 2011 Supreme Court judgment, in the case of 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") 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. Thus, in considering section 37(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

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 37 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 37(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 privacy.

While his application for review acknowledged the importance of protecting third party personal information, the applicant also said that all citizens have a Constitutional right to a good name, in which regard he said the suspension of his access to his nephews is within the public domain. He said he believed his access had been maliciously suspended after he had expressed concerns in relation to the boys' care under TUSLA. The applicant also said that the grounds on which his access had been suspended had been shown to be false, that his access has resumed unsupervised, and that he needed the requested information to be able to present his case in a possible future legal action.

The applicant's wish to obtain the records for the purposes of a possible legal action are based on his own private interests, to which I cannot have regard in making my decision in this review.

It is not within this Office's remit to determine if TUSLA complied with the requirements of fair procedure, or acted appropriately, in making any decisions concerning the applicant's access to his nephews. Neither has this Office any role in assessing the quality of TUSLA's care of the children. The fact of the matter is that the records still contain personal information about various third parties. It is not open to me to determine that such information should be provided to the applicant now, in the public interest under section 37(5)(a) of the FOI Act, simply because it is alleged that TUSLA's various actions might not have been appropriate. As the Commissioner has said in his composite decision in cases 090261/090262/090263 (Mr X and the Health Service Executive & Our Lady's Hospital for Sick Children - available on www.oic.ie), "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

In the case at hand, this means that there is a strong public interest in revealing whether TUSLA carried out its functions in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy. While this public interest has been served to some extent by the partial release of the five social work records, I accept that release of the remaining details at issue would enable further insight in this regard. On the other hand, I accept that release of the sensitive material at issue, effectively to the world at large, would result in a significant breach of the Constitutional rights to privacy of the third parties whose information is also contained in the records.

Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I find that, on balance, the public interest that the right to privacy of the third parties to whom the records also relate should be upheld outweighs the public interest that access to those records should be granted. I find accordingly.

Parts 2(i) and 2(ii) of the request

As noted, TUSLA has not considered any records relevant to these parts of the request. I note it is willing to carry out searches for such records if provided with relevant dates and names. However, the applicant's request was clear, and TUSLA should have engaged directly with him at the outset to seek sufficient details that would enable it to search for all relevant records.

I do not consider TUSLA to have justified its effective refusal of the records concerned. It is open to me to annul that effective refusal and direct it to carry out searches for relevant records, further to consultation with the applicant, and to consider afresh any such records it might locate.

However, this would be an academic exercise. While the records sought by the applicant at parts 2(i) and (ii) of his request were either sent by him to TUSLA, or comprise notes of telephone conversations he had with TUSLA staff, this does not entitle him to access to these records under the FOI Act. They clearly concern his nephews and contain their personal information in addition to that of the applicant. Release of the children's personal information under FOI, to the applicant or anyone else, is effectively release to the world at large.

Applying the above analysis, including that in relation to section 18 of the FOI Act, any records relevant to parts 2(i) and (ii) of the request would be exempt under section 37(7) of the Act, and would not be releasable under any of the exceptions to that provision. Accordingly, I find any records relevant to parts 2(i) and (ii) of the request to be exempt under section 37(7) of the FOI Act.

Other Provisions of the FOI Act

Given my finding that sections 37(1) and (7) apply in this case, there is no need for me to consider the application of section 35 of the FOI Act. However, I note that two records at issue are clearly stated, on their face, to have been prepared for the purposes of Childcare Proceedings. Court Childcare proceedings are held in camera and it is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority. I consider that any records that were created for such proceedings are required to be withheld under the mandatory 31(1)(b) of the FOI Act. Section 31(1)(b) requires that records be withheld where it is known, or ought reasonably to be known, that their disclosure would constitute contempt of court.

I find that the two records concerned, in addition to being exempt under section 37 of the FOI Act, are also exempt under section 31(1)(b).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA's refusal of access to the records at issue under section 37 of the FOI Act and I find that the two records prepared for Childcare Proceedings are also exempt under section 31(1)(b).

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 or, where the party or person concerned contends that the release of a record concerned would contravene a requirement imposed by European Union law, on a finding of fact set out or inherent in 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.

Elizabeth Dolan
Senior Investigator