Case Number: 160234

Whether Tusla was justified in refusing the applicant's request for access to records relating to vaccine trials on the basis that relevant records pre-date commencement of the FOI Act, that other post-commencement records relate to the business or proceedings of a Commission of Investigation, and that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken

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 22 December 2015 the applicant made a request to Tusla for all records held by it relating to vaccine trials, including specific categories of records that he deemed as falling within scope of his broader request.

Tulsa issued a decision on the applicant's request on 5 February 2016. It refused the request under sections 15(1)(c) and 37 of the FOI Act, additionally stating that the cost associated with fulfilling the applicant's request would be €3,436.

The applicant requested an internal review of Tusla's decision on 9 March 2016. On 27 April 2016 the applicant contacted this Office on the basis that Tusla was late in issuing its internal review decision. On 19 May 2016, Tusla issued an internal review decision in which it upheld its original decision. On 25 May 2016, the applicant stated that he wished a review of Tusla's decision to refuse the request to proceed.

Having received submissions from both parties, I have decided to conclude this review by way of a formal, binding decision. In carrying out this review, I have had regard to the correspondence between Tusla and the applicant, and to the correspondence between this Office and both Tusla and the applicant on the matter.

Scope of Review

A review by the Commissioner under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner [2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

During the course of this review, Tusla made fresh arguments, that had not been raised in its decisions, claiming that many of the records sought by the applicant in fact pre-date commencement of the FOI Act and that the balance of the records located by it relate to the business or proceedings of a Commission of Investigation. As this review is considered to be de novo, I am satisfied that it is appropriate to consider Tusla's arguments, notwithstanding that it now wishes to rely upon exemptions not originally applied in support of its refusal to grant the request.

Accordingly, this review is concerned solely with the questions of whether Tusla was justified, under sections 11(4), 31(2) and 15(1)(a) of the FOI Act, in refusing the applicant's request for access to records relating to vaccine trials on the respective bases that some relevant records 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); that other records relate to the business or proceedings of a Commission of Investigation; and that no further relevant records apart from those already mentioned exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matter

The applicant is clearly frustrated by what he sees as Tusla having changed its position on a number of occasions during the processing of his request and in the course of this review. He has also argued that records of the types falling within scope of his request in this case had been released to him on foot of previous requests and that Tusla did not seek to clim that the records were exempt by reason of their age or because they relate to the business or proceedings of a Commission of Investigation.

The applicant's frustration is understandable, particularly given the length of time it took to process his request in the first instance (five months). However, the fact remains that Tusla is entitled to have its arguments propoerly considered by this Office, given the de novo nature of the review. Furthermore, any previous practice on the part of the part of Tusla in realtion to the release of records of a similar nature is not a relevant consideration for the purposes of this review. Rather, the review is confined to a determination of whether Tusla was justified under the provisions of the FOI Act in its decision to refuse access to records coming within scope of the applicant's specific request in this case.

Analysis and Findings

As outlined above, in the course of this review Tusla adopted a different position in relation to the applicant's request to that set out in its original decisions. Nevertheless, I feel that it is appropriate in the circumstances of this case to comment briefly on certain aspects of the manner in which Tusla originally responded to the request, before considering its revised position.

Original Grounds for Refusal
In its original and internal review decisions, Tusla's main ground for refusing the applicant's request was under section 15(1)(c) of the FOI Act, which permits an FOI body to refuse a request for records where the body considers that granting the request would cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the body. However, under section 15(4), before a body can refuse a request under section 15(1)(c), it must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4).

While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), this Office takes the view that the mere offer to amend a request so that it no longer falls to be refused under section 15(1)(c), of itself, is generally not sufficient for the purposes of compliance with the section. In holding this view, this Office is cognisant of the general requirement on FOI bodies, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests. As such, this Office takes the view that before a body can refuse a request under section 15(1)(c), it must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.

The applicant expressed his dissatisfaction with the manner in which Tusla had responded to his request, complaining in particular that it had failed to give him an outline of what records it held, stating that he could not be required to narrow his request "in the dark". During the course of this review, he provided a chain of his email correspondence with Tusla. It is noteworthy that the correspondence was instigated by the applicant himself, and that it does not appear that Tusla made any offer to assist him in narrowing his request before purporting to refuse his request in its original decision under section 15(1)(c).

While I note that the applicant made a suggestion in relation to narrowing his request, which was not followed up on by Tusla, it is also clear that on a number of occasions after that point, Tusla sought clarification from the applicant as to whether there was information that he was particularly interested in. The applicant declined to provide such clarification, stating that "it's hard to know specifically what I can ask as I don't know entirely what there is". The correspondence ultimately concluded with the applicant, by way of email dated 9 March 2016, stating that he thought he had, "narrowed the scope of the request as far as I possibly can." Tusla's internal review decision ultimately issued on 19 May 2016.

While it is apparent to me that there were deficiencies in Tusla's approach to its obligations under section 15(4), in particular its failure to engage with the applicant prior to issuing its original decision, it is a close call, in my view, as to whether it could be regarded as having offered reasonable assistance in this case. On one hand, a request which seeks access to all records relating to a matter on which there is a substantial volume of records held will invariably run the risk of being regarded as voluminous. Section 15(1)(c) is an explicit acknowledgement of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on what are often limited resources. On the other hand, I have some sympathy with the argument that it is difficult for a requester to narrow the scope of a request where he or she has no real knowledge of the nature and extent of the records held.

However, a real difficulty arises where the body must conduct a more detailed analysis of its records to allow it to provide sufficient detail for a requester to make an informed in relation to the narrowing of a request, in circumstances where such a detailed analysis would form part of the administrative burden the body wishes to avoid by invoking section 15(1)(c) in the first instance. Often, a body will be in a position to give a more detailed analysis of the types of records it holds on a particular subject based on the manner in which it stores and processes such records. However, this will not always be the case.

The records sought in this case are quite old and do not, for example, concern current processes. While the records have been collated in a central location, there does not appear to be an obvious classification method which would allow for a straightforward consensus on a narrowing of the FOI request, without the need to conduct a more detailed analysis of the records held. In such circumstances, it seems to me that it could prove difficult for Tusla to provide such a level of detail on the records it holds that might allow the applicant to narrow the scope of his request in a manner that would be acceptabel to both parties. In any event, as Tusla no longer wishes to rely upon section 15(1)(c) as a ground for refusing access, I do not consider it necessary to make a finding on whether or not Tusla complied with the provisions of section 15(4). I have made my comments on the point merely to draw the attention of both parties to the difficulties that can arise in narrowing voluminous requests.

I also wish to comment on the confusion that arose in relation to Tusla's statement in its original decision that a cost of €3,436 would arise in fulfilling the applicant's request. The applicant regarded this as an indication that Tusla would be willing to process the request provided the fee in question was paid. In my view, this was not the case. As I see it, Tusla was simply outlining the time and cost that would be incurred if it was required to process the request, as support for its position that the request fell to be refused under section 15(1)(c).

Finally, in its decisions, Tusla also purported to refuse access to records under section 37(1) of the FOI Act. The section 37 exemption cannot be relied on in an indiscriminate manner so as to refuse access to a class of records. Instead, the records must individually be examined and a determination reached in each instance as to whether the release of the record would involve the disclosure of personal information relating to identifiable individuals. Consideration must also be given to the other provisions of section 37, in particular the public interest test. In this case, Tusla did not undertake a detailed examination of the records at issue.

In its submissions, Tusla also referred to the need to conduct section 38 consultations with each of the individuals whose personal information might be released. However, it is important to note that such a consultation is not necessary in every case, but only where the body is of a mind to release personal information on public interest grounds under section 37(5)(a) of the Act. Thus, where a public body has formed the view that the information contained in a record is personal information of a third party, and is satisfied that the information should not be released in the public interest, no consultation is necessary.

Pre-commencement records
The FOI Act affords a right of access to records held by an FOI body that were created after the effective date for the FOI body concerned. As Tusla was a public body for the purposes of the FOI Acts 1997 & 2003, the effective date in this case is 21 April 1998. This means that any records held by Tusla that were created beofre 21 April 1998 are excluded from the FOI Act unless section 11(5) of the FOI Act applies. Section 11(5) provides that access to records created before the effective date may be granted where access is necessary or expedient to understand records created after the effective date or where the records relate to personal information about the requester.

In this case, the records at issue do not relate to the requester, a journalist. Furthermore, while the applicant was offered the opportunity specifically to comment on the applicability of section 11(5), he did not do so. Accordingly, I find that section 11(5) does not apply in relation to records falling within scope of the applicant's request pre-dating 21 April 1998.

As a significant number of the records held by Tusla coming within scope of the applicant's request 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 access to such records on the ground that no right of access arises under the FOI Act in relation to them.

I note that the applicant, in his request for internal review, specified that his request was "to obtain records in relation to historic vaccine trials", which I take to refer in particular to trials undertaken at Mother and Baby Homes during the 1960s and 1970s. The effect of my finding in relation to section 11(4) is that the applicant has no right of access to contemporaneous records relating to vaccine trials conducted prior to 21 April 1998.

Section 31(2)
Tusla claims that relevant records relate to the business or proceedings of a Commission of Investigation. Section 31(2) provides as follows:

"A head may refuse to grant an FOI request if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of

(a) a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies,
(b) any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member, or the sole member, of which holds or has held judicial office or is a barrister or a solicitor, or
(c) any tribunal or other body or individual appointed by either or both of the Houses of the Oireachtas to enquire into specified matters

and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed."

For the section to apply, a number of conditions must be met, namely:

• the record must relate to the appointment, proposed appointment, business or proceedings of a tribunal, body or individual specified in paragraphs (a), (b) or (c) above,
• the request must be made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed, and
• the record must not relate to the general administration of the tribunal, body or individual or of any of their offices (section 31(3) refers).

Tusla stated that records had been submitted to the Commission of Investigation into Mother and Baby Homes. This Commission was established under the Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Order 2015 (S.I. 57 of 2015), pursuant to section 3(1) of the Commissions of Investigation Act 2004. The Commission is chaired by Judge Yvonne Murphy. Its work is ongoing, and its terms of reference are set out at article 1 of the statutory instrument as including:

"To establish the extent of compliance with relevant regulatory and ethical standards of the time of systemic vaccine trials found by the Commission to have been conducted on children resident in one or more of these institutions during the relevant period (including, inter alia, vaccine trials conducted using vaccines manufactured by Burroughs Welcome in 1960/61, 1970 or 1973)"

In the case of EH and the Information Commissioner [2001] IEHC 182, the High Court considered the meaning of the term "relates to" in the context of whether a record relates to personal information about the requester. O'Neill J. held that the test to be applied to determine whether or not a record "relates to" is ...... "whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question". I consider it appropriate to apply a similar test to the question of whether the records at issue in this case can be said to relate to the business or proceedings of any of the bodies listed in section 31(2), i.e. whether there is a sufficiently substantial link between the business or proceedings of such bodies and the records.

Tusla claimed that records held by it post-dating the effective date of the FOI Act relating to vaccine trials have been provided to, or relate to its interactions with, the Commission, and provided a schedule setting out same. The scheduled records relate to correspondence between Tusla and the Commission or its representatives, records relating to the transmission and receipt of records to the Commission, Commission directions and network access agreements. The final item on the schedule sets out signed statements and affidavits prepared for the Commission to Inquire into Child Abuse. This statutory enquiry has competed its work. However, the terms of reference of the extant Commission at article 15 of the statutory instrument specify that it should "take account of relevant information and findings from previous investigations", including that compiled for the previous Commission. Tusla stated that the statements and affidavits, although initially prepared for the previous Commission, had been provided to the extant Commission.

It is clear that there is a substantial link between each of the records identified by Tusla in its schedule and the business or proceedings of the Commission. I am therefore satisfied that the records set out in the schedule provided by Tusla to this Office relate to the business or proceedings of the Commission, which was appointed by a Minister of the Government to inquire into specified matters, and a member of which holds judicial office. Accordingly, I find that section 31(2) of the FOI Act applies to these records.

Section 15(1)(a)
In the course of this review, Tusla located further records, consisting of emails, which it claims are exempt under section 31(2) of the FOI Act. While a list of these emails has been provided to this Office, and it would appear that at least some of these emails are addressed to and received from the Commission of Investigation, it is not possible for me to be certain that the exemption applies. As these records have not formally been considered by Tusla for release, I am satisfied that the appropriate course of action to take is to annul Tusla's decision in relation to these records only and to direct it to undertake a fresh decision making process in relation to the request.

Aside from the records considered earlier in this decision, Tusla claims that no further records within scope of the applicant's request can be found. Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this 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/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence.

Tusla submitted that its National Office for Adoption Services has responsibility for all matters within its remit arising out of Mother and Baby Homes. It stated that searches had been carried out of hard copy files, electronic databases and emails, and that searches had initially carried out so as to prepare its submissions to the Commission, as well as in response to the applicant's request. Tusla submitted that further searches were carried out in the course of this review, with the relevant senior manager taking an active role in attempting to locate relevant records. Tusla's position is the relevant records post-dating commencement of the FOI Act are those scheduled records which I have found to be exempt under section 31(2) of the FOI Act, as well as the email correspondence referred to above, and that no further records can be found.

I have no reason to doubt Tusla's submission, in particular having regard to its extensive interactions with this Office in the course of this review. Having carefully considered the matter, I am satisfied that all reasonable searches have been carried out. Accordingly, I find that Tusla was justified in deciding, under section 15(1)(a) of the FOI Act, that no further records coming within the scope of the applicant's request exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary Tusla's decision in this case. I find that no right of access arises under section 11(4) of the FOI Act in relation to the records held by Tusla pre-dating 21 April 1998; that the scheduled records post-dating 21 April 1998 identified by Tusla as coming within scope of the applicant's request are exempt under section 31(2) of the FOI Act; I direct Tusla to undertake a fresh decision making process in relation to the emails located in the course of this review; and find that section 15(1)(a) of the FOI Act applies in relation to the balance of the applicant's request, as no further records exist or can be found after all reasonable searches have been undertaken.

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