Case Number: 150398

Whether TUSLA was justified in its decision to refuse access to parts of records concerning the applicant on the basis of section 37(1) and section 37(7) of the FOI Act

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

On 21 May 2014, the applicant, through her solicitor, made an FOI request to the HSE seeking access to all documents relating to her during "her custody of the State" while under a child care order. Following contact between the applicant and the HSE on 27 November 2014, the scope of the request was narrowed to all social work, residential care and foster care records. However, according to the HSE, the request was not processed as the applicant had not provided a pre-care address. This information was provided on 24 June 2015 and it appears that the HSE issued a decision on 30 July 2015 partially granting the request. It refused access to portions of records on the basis of sections 35(1)(a) and 37(1) of the FOI Act as identified on the schedule provided to the applicant. Subsequently, the Children and Family Services functions of the HSE were transferred to TUSLA and on 2 September 2015, TUSLA affirmed the original decision under sections 37(1) and 37(7). On 15 September 2015, TUSLA issued a further decision concerning records held by the Fostering Resource Unit refusing access to certain records on the basis of sections 15, 35 and 37 of the FOI Act. For the purposes of this review, references to TUSLA should be read as the HSE where appropriate.

The applicant wrote to this Office on 12 November 2015 seeking a review of TUSLA's decision of 2 September 2015.

This Office requested submissions from TUSLA and the applicant on 23 March 2016. TUSLA responded stating that given the content of the records, the decision letter and schedule of records it could not add more and therefore would not be making a submission. No response was received from the applicant. I consider that the review should now be finalised by way of a formal, binding decision.

I note that in this review it was necessary to serve notice on the head of TUSLA in order to obtain copies of the unredacted records to enable this Office to examine the information the subject of the review.

In conducting my review I have had regard to the application from the applicant and to correspondence between the applicant and TUSLA. I have examined the contents of records provided to this Office for the purposes of this review and had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with whether TUSLA was justified in its decision to refuse access to portions of records under sections 37(1) and 37(7) of the FOI Act as identified on the schedule provided to the applicant.

Analysis and Findings

Section 18
Firstly I should draw attention to section 18 of the FOI Act which 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on TUSLA to satisfy the Commissioner that its decision to refuse access to the records was justified.

Section 37
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 37(7) further provides for the refusal of a request where the body considers that access to the record 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 other than the requester. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.

The records in this case are social work records concerning the applicant when she was in care as a child. Having examined the records I note that the information redacted by TUSLA refers to (1) persons other than the applicant including third parties, such as the family members of the applicant and her foster parents and (2) the applicant and those third parties. It seems to me that, given their context and content, none of the withheld records within the scope of this review contain information which is personal information relating solely to the applicant. In considering this aspect, I have taken account of section 18 of the FOI Act as referred to earlier in this decision. On that basis, I find that the redacted parts of the withheld records, as identified on the schedule provided to the applicant, are exempt from release on the basis of section 37(1) and section 37(7) subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2) and section 37(5)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue here.

Section 37(5) of the FOI Act provides that a request which 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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. To a large extent, this public interest has been served by the release of the substantive records albeit with a small number of redactions. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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. I find that, in the circumstances of this case, the right to privacy of the third parties whose personal information is in the records outweighs the public interest in granting the applicant's request.

In summary, I find that sections 37(1) and 37(7) applies and that none of the exceptions under section 37 apply to the information.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of TUSLA to refuse access to the withheld records.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator