Whether TUSLA was justified in refusing access to certain information relating to fostering

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 10 July 2015 the applicant made a detailed request to TUSLA for a range of information relating to fostering for a range of dates. While TUSLA acknowledged her request on 15 July 2015, it failed to issue a decision on the request.

On 12 October 2015, the applicant sought an internal review of the deemed refusal of her request. Once again, TUSLA failed to provide a decision on internal review within the time-frame specified in the FOI Act. On 28 November 2015, the applicant sought a review by this Office of the refusal of her request.

Following correspondence with this Office, TUSLA wrote to the applicant on 10 December 2015 outlining its position in relation to the information sought. While it stated that it had decided to grant the request, only one record was enclosed in response to one part of the original request. On 16 December 2015, the applicant informed this Office that she required a review of TUSLA's effective decision.

In conducting this review I have had regard to the correspondence between the applicant and TUSLA on the request and to correspondence between this Office and both the applicant and TUSLA on the matter.

Scope of Review

This review is concerned solely with whether TUSLA was justified in its decision to refuse to release further records to the applicant relating to her request.

Preliminary Matter

I should state at the outset that the FOI Act confers a general right of access to records rather than a general right of access to information. This means that if the information sought is not contained in a record held by the public body, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the relevant information as it does not oblige public bodies to create or compile information which does not exist.

Analysis and Findings

TUSLA's handling of the applicant's request was most unsatisfactory. Indeed, apart from acknowledging the request, it appears to have had no regard whatsoever to the requirements of the FOI Act in processing the request. It failed, by a large margin, to comply with the statutory time-frames for processing either the original request or the request for internal review.

In correspondence with this Office dated 8 December 2015, TUSLA stated that the original request was sent out to all areas concerned but as some of the information was from 2005 the areas could not collate the information requested as it does not exist and/or would have had a considerable cost implication for the service. It stated that the request was for review by the areas but it was not completed due to a change in the staffing structures/levels. It stated that it was the intention of all local areas to respond but as the agency is going through a huge transition period over the last eighteen months the local areas were waiting for the statistics to be compiled before completing the request. It further stated that it was working on compiling/transferring records and statistics from paper format to a computerised database which is not completed.

When TUSLA eventually issued a decision on the request on 10 December 2015, it essentially refused the entire request apart from the release of one record in response to one part of the seven part request, and even then that part was not granted in full. While it gave a range of reasons for not releasing other records, it made no reference whatsoever to the FOI Act in refusing access. Amongst other things, it stated the following:

" .. this data is being quality assured and has not been made available to date ... This information will be made available in the coming months"

"TUSLA do not provide information pertaining to individual children where their identity might be exposed by transcripts of their case records"

"This information is not collected nationally"

"In order to provide an accurate and complete response additional stakeholders were identified with whom it was necessary to consult. This work has been prioritised and the information collated"

While I accept that TUSLA is a relatively new agency, the manner in which it handled the applicant's request is unacceptable. I fully accept that as a new agency, it faces significant challenges in putting the appropriate structure and processes in place. However, this does not relieve it of its obligations under the FOI Act. The administration of FOI is one of TUSLA's statutory functions which should be afforded as much weight as any other statutory function.

It is not the case that TUSLA was unaware of its obligations under the Act. I note, for example, that the acknowledgement which TUSLA issued upon receipt of the original request contained accurate details in relation to the time-frame within which a decision was required. I am also aware that it has processed many other FOI requests and has direct experience of applying specific exemptions when refusing access to records.

TUSLA may argue that the broad nature of the applicant's request was a contributory factor, given its views that collating the information sought "would have had a considerable cost implication for the service". If this is the case, then it should have considered whether it might be necessary to ask the applicant to narrow the scope of the request or failing that, to refuse the request on administrative grounds. Section 15(1)(c) of the FOI Act permits an FOI body to refuse a request for records where processing the request would cause a substantial and unreasonable interference with or disruption of its work, provided it has first assisted or offered to assist the requester in narrowing the request (section 15(4) refers).

I am also very concerned at the reasons given by TUSLA for refusing access to some of the information sought and the absolute failure to refer to any of the relevant exemptions contained in the FOI Act for doing so. For example, while it is clearly aware of, and has previously relied upon, the exemption that protects personal information, it chose instead to refuse access to certain information on the ground that it simply does not provide such information. Section 13 of the FOI Act provides specific details of the information that must be included in decision notices. Where a request is refused in whole or in part, the decision notice must include the reasons for the refusal and, generally, any provision of the Act pursuant to which the request is refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision (section 13(2)(d) refers).

All of this leaves me in a position where I find it very difficult to progress this review in any meaningful way. I am not aware of what records TUSLA holds in relation to the request or what its position is in relation to the release of such records. I do not consider that this Office, in reviewing the public body's decision, is required to obtain, examine and apply the Act to records which ought to have been considered before any decision was made. I note that under section 22(12)(b) a decision to refuse to grant a request shall be presumed not to have been justified unless the body satisfies this Office that its decision was justified. However, given that at least some of the records are likely to contain sensitive personal details relating to individuals, it is not appropriate for me to simply direct the release of all relevant records in the absence of any knowledge as to the nature or contents of such records.

Furthermore, I am not aware as to whether TUSLA even holds records relating to certain parts of the applicant's request. Where a body cannot locate records, it is entitled to refuse the request on the ground that the records sought cannot be found or do not exist, provided it has taken all reasonable steps to ascertain the whereabouts of the records (section 15(1)(a) refers).
Accordingly, I am satisfied that the appropriate course of action in this case is to annul TUSLA's decision and to direct it to undertake a fresh decision making process in relation to the applicant's request. The effect of this finding is that TUSLA should consider the request afresh and make a new, first instance, decision in respect of them. The applicant would have a right to internal review and to a review by this Office if she is not satisfied with that decision. In making its decision, TUSLA must comply with the statutory requirements of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul TUSLA's decision and direct it to undertake a fresh decision making process in relation to the FOI request.

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.

Stephen Rafferty
Senior Investigator