Case Number: 160180

Whether Tusla was justified in its decision to withhold certain records, in whole or in part, relating to the applicant's daughter.

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 submitted a request to Tusla on 9 February 2016 for a copy of the file and all associated documentation relating to his daughter. In its decision of 23 February 2016, Tusla released 17 pages in full, 25 in part, and refused access to four pages.

The applicant sought an internal review of Tusla's decision on 4 March 2016. On 4 April 2016 Tulsa issued an internal review decision in which it released additional information. It refused access to pages 18, 19, 20, and 35 and granted partial access to pages 6, 8, 12, 13, and 14. The applicant sought a review by this Office of Tusla's decision on 21 April 2016. In his application for review, he stated that certain correspondence was not included in the information released.

In conducting this review I have had regard to the correspondence between the applicant and Tusla outlined above, to the correspondence between this Office and both the applicant and Tusla on the matter, and to the contents of the records at issue.
In referring to the records at issue, I have adopted the page numbering system used by Tusla in the schedule it provided to this Office.

Scope of Review

During the course of the review, Tusla released page 6 in full to the applicant. Accordingly, this review is concerned solely with whether Tusla was justified in refusing access to pages 18, 19, 20, and 35, in granting only partial access to pages 8, 12, 13, and 14, and in deciding that further relevant correspondence does not exist or cannot be found.

Preliminary Matters

Before I address the substantive issues arising in this review, I would like to make a number of comments. This Office's remit does not extend to commenting on the manner in which an FOI body performs its functions generally, or to investigating complaints against an FOI body. Our remit is confined to determining whether the body was justified in the decision taken on the FOI request.

It is also important to note that under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. This is of particular relevance where the question of the release of information relating to third parties is at issue.

Thirdly, it is important to note that a review by the Commissioner under section 22 of the FOI Act is de novoin that it is based on the circumstances and the law as they apply on the date of the decision.

Finally, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Analysis and Findings

Tusla cited sections 35(1)(a) and 37(1) in withholding certain pages, either in whole or in part. As I consider section 37 to be of greater relevance in this case, I will address that exemption in the first instance.

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.

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The records at issue relate to Tusla's examination of matters concerning the welfare of the applicant's child. As such, they contain inherently private, sensitive information about all members of the family including not only the applicant and his child, but also the mother of the child. Having carefully examined the records, I am satisfied that the disclosure of pages 18 and 35 or of the information redacted from pages 8, 12, 13, and 14 would involve the disclosure of personal information relating to parties other than the applicant and/or his daughter, or joint personal information relating to the applicant and/or his daughter that is inextricably linked to personal information relating to third parties. Accordingly, I find that section 37(1) applies to such 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. Section 37(5) of the 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 third parties other than the applicant's daughter 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 in 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 (the Rotunda judgment) (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 applicant, in his submission to this Office, stated that he is seeking the records in order to ascertain the content of a complaint made against him by a third party concerning the care of his daughter. The applicant has also expressed his dissatisfaction with the manner in which Tusla dealt with said complaint. In line with the Rotunda judgment, in the context of determining whether to grant a request in the public interest under section 37(5)(a), the reasons given for a request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public. In this case, it seems to me that the applicant has identified a specific private interest in accessing the information at issue. Nevertheless, The Long Title of the FOI Act reflects that there is a general public interest in openness and accountability with respect to information held by public bodies, provided that it is consistent with the right to privacy.

On the other hand, the public interest in respecting the right to privacy is a very strong public interest and is recognised in the language of section 37 of the FOI Act. This public interest in protecting privacy rights is also reflected in the Long Title to the Act. Furthermore, the right to privacy has been recognised as an unenumerated right under the Constitution. I am also mindful that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. Also, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

While there is a public interest in openness and transparency in the manner in which Tusla performs its functions, I believe that this public interest has been served, to some extent, by the amount of information already disclosed. The question I must consider is whether the public interest in disclosing the remaining information outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. In my view, it does not.

The information at issue in this case is of a private and personal nature relating not only to the applicant and/or his daughter but also to identifiable third parties. In the circumstances, it is important to recall that release under FOI is regarded, in effect, as release to the world at large. While there is a public interest in optimising openness and transparency in the manner in which Tusla has dealt with the referral relating to the applicant's daughter, I do not consider that the public interest in the release of the joint personal information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the other third parties to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

The applicant has also submitted that as certain information relating to third parties was released to him on foot of his request, he considers that any remaining personal information should not be exempt from release. I do not agree. Section 37 is a mandatory exemption exempting from release the personal information of third parties. While Tusla may have released personal information to the applicant during the course of its response to the applicant, this does not mean that it is open to me to direct the release of other personal information contained in the records at issue.

Accordingly, I find that Tusla was justified in refusing access to pages 18 and 35 and in granting only partial access to pages 8, 12, 13, and 14 under section 37 of the FOI Act. As I have found these pages, or parts of pages, to be exempt, I do not need to consider whether they are also exempt from release under section 35.

Tusla has also claimed that pages 19 and 20 are exempt from release under section 37 of the FOI Act, on the basis that they contain personal information relating to a third party. The two pages comprise a single letter from Tusla to a third party. Having considered the contents of the letter, it seems to me that insofar as the letter contains personal information, it is primarily personal information relating to the applicant's daughter. The disclosure of the letter would not, in my view, disclose personal information of any consequence relating to any other parties that has not already been disclosed to the applicant. However, given that the letter comprises personal information relating to the applicant's daughter, the Freedom of Information Act 1997 (Section 28(6)) Regulations 2009, must also be considered.

While the 2009 Regulations have since been replaced by the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, the 2016 Regulations provide that any action commenced under the 2009 Regulations shall continue to be performed and shall be completed after the commencement of the 2016 Regulations as if the 2009 Regulations had not been revoked. Essentially, the 2009 Regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any guidelines drawn up and published by the Minister, access to the records would be in the minor's best interests. Guidance Notes published by the Minister specify certain factors to be taken into consideration in determining whether release would be in the minor's best interests, including;

whether the minor would consent to release of the material,
whether release of the material would damage the minor in some way, and
whether the records are held in the minor's own right.

Furthermore, in its judgment in the case of McK v. The Information Commissioner[2006] 1 IR 260, the Supreme Court held that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. Having considered the contents of the letter at issue, I am satisfied that the applicant has a right of access to the letter at issue in accordance with the provisions of the 2009 Regulations. I find, therefore, that Tusla was not justified in refusing access to pages 19 and 20.

For the benefit of the applicant, I should explain that the question of whether a right of access to the other withheld pages under the 2009 Regulations does not arise, given my finding that those pages contain joint personal information relating to parties other than the applicant and/or his daughter.

Other Records

During the course of this review, the applicant stated that a letter that Tusla sent to him in 2015 indicating that it must investigate a complaint made by him should have been included with the records released to him. Tusla informed this Office that it could not locate the letter in question. Section 15(1)(a) of the FOI Act is therefore relevant.

Section 15(1)(a) provides that a request for access to records 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. My 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 public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable.

It should be noted that it is possible for this Office to find that a public body has conducted all reasonable searches, even where records that are known to exist cannot be found. It would not generally be reasonable for a public body to be required to continue searching indefinitely for records.

Tusla informed this Office that the Social Work Department searched electronically for the letter at issue in the Social Work Information System, and also searched in the physical file created for the case. It stated that it did not locate a record of the letter sought. It also stated that all records that were created in relation to the case would be contained on the relevant case file, and would not have been retained on a separate file relating to the applicant alone.

While it is regrettable that a copy of the letter in question was not retained on the relevant file by Tusla, I am satisfied that it has taken all reasonable steps to locate the letter. I find, therefore, that Tusla was justified in its decision to refuse access to the letter under section 15(1)(a) of the FOI Act on the ground that the record cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of Tusla. I direct the release of pages 19 and 20 to the applicant.

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