Whether TUSLA was justified in its decision to refuse access to a recording of a telephone conversation between the applicant and a social worker on the ground that no such record exists

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 6 May 2015, the applicant submitted a request to TUSLA for a copy of a recorded telephone conversation to which reference is made in a specified record contained in her file. The record in question is an application for admission to voluntary care. It contains a hand written entry dated 4 February 2010 by a named social worker stating that the applicant was too emotionally upset to sign the form but gave verbal consent over the phone. The applicant sought a copy of that telephone conversation.

In its decision dated 28 May 2015 TUSLA informed the applicant that section 15(1)(a) of the FOI Act applies as no such record exists. On 25 June 2015 the applicant requested an internal review of TUSLA's decision and on 20 July 2015 TUSLA issued its internal review decision, upholding the original decision. The applicant sought a review by this Office of TUSLA's decision on 22 July 2015.

I note that Mr Richard Crowley of this Office contacted the applicant by telephone on 2 October 2015 and informed her of his view that TUSLA's decision was justified. The applicant requested written confirmation of this. I therefore consider that this review should now be brought to a close by issue of a formal, binding decision. In conducting this review, I have had regard to correspondence between TUSLA and the applicant, to communications between this Office and the applicant and to communications between this Office and TUSLA on the matter.

Scope of Review

This review is concerned solely with whether TUSLA was justified in refusing access to a record of a telephone conversation between the applicant and a social worker under section 15(1)(a) of the FOI Act, on the ground that the record sought does not exist.

Analysis and Findings

Section 15(1)(a) of the FOI Act 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 FOI body and to decide whether that 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 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 FOI body, on the basis of which the FOI 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).

TUSLA informed this Office that the telephone conversation in question could not have been recorded as the telephone system in place at the time of the call in February 2010 was not capable of recording telephone calls. TULSA also informed this Office that it was not the policy or practice at the time to record telephone calls. It is TUSLA's position that there is no recording of the telephone conversation which the applicant is seeking in this case. I have no reason to dispute TUSLA's position on the matter. Accordingly, I find that TUSLA's decision to refuse the applicant's request under section 15(1)(a) of the FOI Act was justified.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TUSLA to refuse the applicant's request under section 15(1)(a) of the FOI Act, on the ground that the record sought does not exist.

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