Whether TUSLA was justified in its decision to partially redact records relating to the applicant's daughter under sections 35 and 37 of the FOI Act

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

The applicant made a request to TUSLA on 27 March 2015 for records collected during 2014 relating to her daughter. It appears that TUSLA discussed the request with the applicant, following which she wrote to TUSLA on 19 May 2015 stating that she had requested her files about her daughter but had not received them. Among other things, she stated that she wanted to know why "TUSLA lifted [her daughter's] records out of her school on 3-5-2014".

On 19 June 2015, TUSLA issued a decision to grant access to nine records, five of which contained some redactions. I should state at the outset that in processing the request, TUSLA assigned a specific number to each page of the applicant's file, as opposed to each complete record. For the purposes of this review, therefore, in referring to the records at issue, I have adopted the numbering system used by TUSLA and will refer to each page number as a separate record. All nine records to which access was granted dated from 2014.

In correspondence that TUSLA received on 21 July 2015, the applicant sought a review of the decision not to grant the request in full. In an accompanying letter dated 19 June 2015, she again referred to information that TUSLA allegedly obtained from he daughter's school. She stated that she had been informed by the school principal that such information had been sought and she stated that she wanted to know "who and why a file was opened" on her daughter. She further stated that she required the rest of the file that was supplied by the school as she felt that she had only received part of the file.

TUSLA issued an internal review decision on 15 September 2015, in which it identified 39 records as coming within the scope of the applicant's request. Of 176 records considered, it granted access in full to 27 records and granted access to 12 further records with redactions. On 21 September 2015 the applicant applied for a review by this Office of Tulsa's decision. In her letter, she stated that was seeking the file for 2914 and 2015 and that she had been given information for 2011 she did not ask for.

In conducting this review, I have had regard to communications between the applicant and TUSLA as set out above. I have also had regard to communications between this Office and both the applicant and TUSLA on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

There is some confusion as to the nature and scope of the request considered by TUSLA in this case. As I have outlined above, the applicant submitted her request on 27 March 2015 and following a discussion with TUSLA, she submitted a further letter dated 19 May 2015. While the decision of 19 June 2015 appears to have had regard to the applicant's request of 19 March, TUSLA subsequently informed this Office that its internal review decision of 15 September 2015 represented a decision with respect to the applicant's two requests from 27 March 2015 and 19 May 2015.

It is not clear to me that this was the correct approach to take. Having examined the applicant's letter of 19 May 2015, her request for internal review, and her subsequent correspondence with this Office, I am satisfied that it is the request of 27 March 2015 and TUSLA's processing of that request that is the subject of review by this Office.

I further note that in processing the request, TUSLA considered the contents of the applicant's entire file, a total of 176 records. As the applicant's request was for records relating to her named daughter, it identified 39 records as being within the scope of her request, as the balance of the records do not relate to her named daughter. Having reviewed the file, I am satisfied that TUSLA was correct in determining that the remaining records fell outside the scope of the applicant's request.

As I have outlined above, TUSLA granted access in full to 27 records and granted access to 12 further records with redactions. The 12 records identified as containing redactions are records numbered 1, 7, 8-11, 27-29, 104-105, and 107. However, of the 39 records identified as being relevant to the applicant's request, only 11 records (7, 8, 9, 10, 11, 12, 85, 86, 87, 88 and 148) date from 2014.

Records 12, 85, 86, 87, 88 and 148 were released in full to the applicant. Accordingly, this review is solely concerned with whether TUSLA was justified in redacting information contained in records 7, 8, 9, 10, and 11.

Analysis and Findings

Records 7, 8 and 9 comprise a single document, namely a completed "Standard Report Form" for reporting child protection and welfare concerns to TUSLA, dated December 2014. The information redacted includes the identity of a person who reported concerns to TUSLA in relation to the applicant's daughter, information relating to named third parties, and the mobile and work telephone numbers of the named TUSLA employee who completed the form. Similarly, Records 10, 11 and 12 comprise a Standard Report Form, also dated December 2014. The information redacted comprises the name of a third party who allegedly has concerns for the applicant's daughter.

Having examined TUSLA's file, I can find no record of any interaction between TUSLA and the school relating to the applicant's daughter as suggested by the applicant. In relation to the records at issue, the redaction of information relating to the identities of the person who reported concerns and of the third party who allegedly has concerns for the applicant's daughter falls to be considered under section 35(1)(a) of the FOI Act, in my view.

Section 35(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:

• given to an FOI body in confidence and,
• on the understanding that it would be treated by it as confidential and,
• in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

 

Having examined the records, I am satisfied that the person who reported concerns intended that his/her identity should remain confidential and as such, was given in confidence on the understanding that it would be treated as confidential. I am also satisfied that the information relating to the identity of a third party who allegedly has concerns for the applicant's daughter was also given in confidence on the understanding that it would be treated as confidential. It is clearly very important that TUSLA should continue to receive reports of child protection and welfare concerns. In my view, it is also important that TUSLA should continue to receive details of the identity of the person making such reports and I accept that by failing to protect the identity of a person who wishes to remain anonymous, there is a substantial risk to the future supply of such information. Furthermore, I accept that it is important that TUSLA should continue to receive information relating to other potential sources of concern, all of which assists in the evaluation of reports of child protection and welfare concerns. Accordingly, I find that section 35(1)(a) applies to the information in question.

Section 35(1)(a) does not apply in certain circumstances. I am satisfied that section 35(2) does not apply in this case. Under section 35(3), section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. While I accept that there is a public interest in promoting openness and transparency in how TUSLA deals with reports of child protection and welfare concerns, it seems to me that this public interest has been served to an extent by the release of the vast majority of the information contained in the records. Furthermore, in my view the public interest in ensuring the continued receipt of information such as that at issue outweighs, on balance, the public interest in release. Accordingly, I find that TUSLA was justified in refusing access to the information relating to the identities of the person who reported concerns and of the third party who allegedly has concerns for the applicant's daughter.

What remains to be considered is the information in the records relating to named third parties and the mobile and work telephone numbers of a TUSLA staff member. Section 37(1) of the FOI Act provides that an FOI 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 an FOI 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.

I am satisfied that the information contained in the records relating to named third parties is joint personal information relating to the applicant and to the third parties in question. Arguably, the information does not come within the scope of the applicant's request as it does not relate to the applicant's daughter. Nevertheless, for the avoidance of doubt, I find that section 37(1) applies to the information.

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 37(5)(a).

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 private and personal nature. While there is a public interest in openness and transparency in the manner in which TUSLA performs its functions, I am of the opinion that this has met to some degree by the release of the vast majority of the information contained in the records. I do not consider that the public interest in the release of the redacted information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

I am not satisfied that the work telephone number of TUSLA staff member can be described as personal information for the purposes of the FOI Act. I find, therefore, that TUSLA was not justified in redacting the work telephone number in record 7. On the other hand, I am satisfied that the mobile telephone number of the social worker, as contained in records 7 and 8, comes within the meaning of personal information contained in section 2. Accordingly I find that section 37(1) of the Act applies to this telephone number. Furthermore, I am satisfied that none of the other provisions of section 37 serve to disapply that exemption. Accordingly, I find that TUSLA was justified in refusing access to the staff member's mobile telephone number as identified above under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of TUSLA in this case. I find that TUSLA was justified in redacting information from records 7, 8, 9, 10 and 11 apart from the work telephone number of a staff member.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty,
Senior Investigator