Case Number: 160301

Whether TUSLA was justified in its decision to refuse access to records records held by it that were given to the State in 1961 on the closure of a specified facility on the ground that the records at issue were created before the commencement date 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

On 14 January 2016, the applicant, through its solicitors, submitted a request to TUSLA for records relating to a named maternity home for unmarried mothers and their children that it handed over in 1961 upon closure of the facility. On 4 March 2016, TUSLA refused the applicant's request under section 37(1) of the FOI Act on the basis that the records contain personal information of third parties. On 21 March 2016 the applicant sought an internal review of TUSLA's refusal. On 21 June 2016, TUSLA issued an internal review decision in which it affirmed the decision to refuse the request, but on the basis that the records are not subject to the FOI Act as they were created prior to the relevant commencement date. The applicant sought a review by this Office of that decision on 14 July 2016.

During the course of this review, the applicant's solicitors were offered the opportunity to make submissions on the question of whether the records at issue pre-date the commencement of the FOI Act. The solicitors indicated that they did not have instructions to lodge a further submission. I therefore consider that this review should be brought to a conclusion by way of formal decision. In conducting this review I have had regard to the correspondence between the applicant's solicitors and TUSLA, and to correspondence between this Office and both the applicant's solicitors and TUSLA.

 

Scope of Review

This review is solely concerned with the question of whether TUSLA was justified in its decision to refuse access to records held by it that were given to the state in 1961 on the closure of a specified facility on the ground that the records at issue were created before the date on which the FOI Act took effect in relation to records held by TUSLA, i.e. before 21 April 1998.

 

Analysis and Findings

The applicant's solicitors, in their application to this Office, confirmed that "the [facility] closed in 1961 and the records/information was handed over by our clients ... at that time". Moreover, TUSLA has confirmed that it now holds the records sought. Therefore, there is no dispute but that the records were created in 1961 or earlier.

Section 11(4) of the FOI Act provides for a right of access to records held by FOI bodies that were created on or after the effective date. As TUSLA was a public body for the purposes of the FOI Acts 1997 & 2003, the effective date is 21 April 1998. Section 11(5) confers a right of access to records created before 21 April 1998 where such access is necessary or expedient to understand records created after that date, or where the records relate to personal information about the requester.

In this case, the records at issue cannot constitute the personal information of the requester, as the applicant is a corporate body. Furthermore, the applicant has not argued that access to the records sought is necessary or expedient in order to understand records created after 21 April 1998, despite having been offered the opportunity to do so. Accordingly, I find that section 11(5) does not apply.

As the records sought were created before 21 April 1998 and as I have found that section 11(5) does not apply, I find that TUSLA was justified in refusing the request on the ground that the FOI Act does not apply to the records at issue.

 

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 the 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