Whether TUSLA was justified in deciding to refuse access to parts of the applicants' fostering files on the grounds that the records are exempt from release under sections 22, 26 and 28 of the FOI Act

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

Background

Two points should be noted at the outset. First, the Children and Family Services functions of the HSE were transferred to TUSLA on 1 January 2014, but under a memorandum of understanding the 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 applicants acted through their solicitor in their dealings with TUSLA in this FOI request.

By letters dated 13 June 2014 and 1 July 2014, the applicants made an FOI request to TUSLA for their respective fostering files. On 12 February 2015, TUSLA released some records in whole or part and refused access to the remaining records on the grounds that they were exempt under section 26 (confidentiality) and section 28 (personal information) of the FOI Act. By letter dated 13 March 2015, the applicants applied for an internal review. On 24 April 2015, the applicants contacted this Office, as they were concerned that their internal review request would be delayed in the same way that their original request had been. Following this Office's intervention, TUSLA issued its internal review decision by letter dated 10 June 2015. It varied its original decision, releasing five records and refusing access to the remaining records on the grounds that they were exempt under section 37(1) (joint personal information) and section 31(1) (contempt of court) of the FOI Act 2014. On 1 July 2015 the applicants applied to this Office for a review of TUSLA's decision.

In reviewing this case I have had regard to TUSLA's decision on the matter; TUSLA's communications with this Office; the applicants' communications with this Office; communications between the applicant and TUSLA on the matter; and the content of the withheld records provided to this Office by TUSLA for the purposes of this review.

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. In its internal review decision, TUSLA referred to provisions of the FOI Act 2014. However, since the original FOI request predated the enactment of the FOI Act 2014, TUSLA should have referred to the provisions of the FOI Act 1997 - 2003. As the relevant provisions are the same in substance, I will treat these references as if they were to that Act.

Scope of the Review

This review is concerned with whether TUSLA was justified in its internal review decision to grant partial access to certain records and refuse access to the remaining records on the basis of sections 22(1), 26 and 28(1) of the FOI Act (the applicants refer to section 26 in their schedule of records). I will refer to the redacted parts of the partially granted records and the withheld records collectively as "the records".

Handling of the request by TUSLA

In the course of this review, TUSLA has dealt with this Office extremely promptly and helpfully. Nevertheless, I must comment on the way in which it handled the applicants' FOI request. Over seven months elapsed between the applicants' original FOI request and TUSLA's decision. This is a clear breach of the statutory requirement (four weeks). Three months elapsed between the internal review request and TUSLA's internal review decision. This is another clear breach of the statutory requirement (three weeks). The applicants' solicitor asked TUSLA for updates on various occasions. Five months after the applicants' original request, an officer of TUSLA advised the applicants' solicitor that "as dealing with such requests is but one facet to the daily workload, it is not possible for me to give an exact date of release of a decision other than we will endeavour to complete as soon as possible (sic)". In view of TUSLA's obligations under the FOI Act, I find this response wholly unacceptable. I would remind public bodies that it is incumbent on them to ensure that sufficient resources are in place to facilitate compliance with their duties under FOI legislation.

Preliminary Matters
Before I consider the exemptions claimed, I wish to make the following four points.

Firstly, while I am required to give reasons for my decision under section 34(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 43(3). This means that the extent to which I can describe the withheld information and elaborate on my reasoning is limited.

Secondly, section 13 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 13 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 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, I am not in favour of the cutting or "dissecting" of records to such an extent.

Thirdly, subject to the provisions of the FOI Act, section 8(4) requires me to disregard an applicant's reasons for an FOI request. In their submissions to this Office, the applicants gave reasons for their FOI request. I consider them below, but only to the extent that they relate to the public interest question.

Finally, with certain limited exceptions (e.g. sections 28(2)(a) and 28(6), 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). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

As I have noted, TUSLA refused access to certain records and granted partial access to others. It relied on section 28 of the FOI Act in relation to all of the records. It also relied on section 22 in relation to one record and section 26 in relation to a few records.

Section 28 - personal information

Section 28(1) and 28(5B)

Section 28(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" 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 is personal without prejudice to the generality of the foregoing definition. These categories include "(i) information relating to the educational, medical, psychiatric or psychological history of the individual" and "(xii) the views or opinions of another person about the individual".

Section 28(5B) provides that access to a record which relates to the requester shall be refused if it involves the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

I have examined the records. They relate to: children who are or were in the foster care of the applicants; other children in foster care; parents of children in foster care; family members of the applicants; and other third parties. Although some of the records contain information which relates to the applicants, none of them relate solely to the applicants. Accordingly, their release would involve the disclosure of personal information relating to individuals other than the applicants. With the exception of one record (which I deal with below) I therefore find that the records are exempt from release under sections 28(1) and 28(5B) of the FOI Act.

In theory, one could extract certain words or phrases from the records which relate solely to the applicants. However, those words and phrases appear in the context of, and are inextricably linked to, other words and phrases which relate primarily to the foster care and welfare of people other than the applicants, namely children in foster care. Having regard to section 13 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. My findings under sections 28(1) and 28(5B) are subject to the provisions of sections 28(2), 28(5) and 28(6), which I examine below.

Section 28(2)

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) (as I note above) the information contained in the records does not relate solely to the applicants; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information 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) - The Public Interest

Section 28(5) of the FOI Act provides that access to the personal information of a third party may be granted where:

(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.

The applicants submit that the information contained in the records is significant for them as foster carers and as a family. They wish to be able to make a comprehensive record of information available to their foster child when s/he comes of age, so that the child can own their life story. They wish to be able to say to the child that they did everything possible to obtain the truth for her/him. The applicants also refer to alleged "unethical practices and biased procedures" in relation to their fostering.

While section 8(4) of the FOI Act requires me to disregard the applicant's reasons for the request, I may take them into account to the extent that they are potential public interest factors which favour release.

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 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. Therefore in considering section 28(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 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 privacy.

In my view, the information which the records contain is inherently private. It relates principally to the histories of children in foster care and to their welfare. I consider this to be highly sensitive information, which is extremely personal to the third parties concerned. I do not doubt the sincerity or good intentions of the applicants in this case. However, I cannot identify a public interest which would override the Constitutional rights to privacy of the children and other third parties to whom these records relate.

The applicants allege "unethical practices and biased procedures". However, 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 applicants' fostering of children. Indeed in their submissions, the applicants themselves acknowledge that it is not the Commissioner's role to regulate the behaviour of professionals. As the Commissioner 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."

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 right to privacy of the third parties whose information is at issue outweighs the public interest in granting the applicants' request. I therefore find that section 28(5)(a) does not apply in the circumstances.

Although the applicants do not cite section 28(5)(b), they effectively argue that it applies to the release of the records which relate to their foster child. I have therefore considered this point. My decision is made in light of the current circumstances. I am not at all satisfied that granting access to the records which relate to the applicants' foster child would benefit her/him at this point in time, when s/he remains a child. Furthermore, I note that it would be open to her/him to request the records which concern her/him when s/he is older. I therefore find that section 28(5)(b) does not apply in the circumstances.

Section 28(6)

Regulations have been made by the Minister in relation to FOI requests where the requester is the parent or guardian of a child to whom the record relates. It has not been argued that the applicants are the legal guardians of any of the individuals referred to in the records and I have no reason to believe that this is the case.

Other exemptions and section 22(1)(b)

My finding under section 28 applies to all the records. Accordingly, I am not required to consider the exemptions claimed under section 22 or section 26 of the FOI Act.

However, I note that record 1(a) - (s) in section 6 of file 3 is stated on its face to to have been prepared for the purposes of court 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 record that was created for such proceedings is required to be withheld under the mandatory 22(1)(b) of the FOI Act. Section 22(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 therefore find that record 1(a) - (s) in section 6 of file 3, in addition to being exempt under section 28 of the FOI Act, is exempt under section 22(1)(b).

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of TUSLA to refuse access to the records.

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. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator