Case Number: 170214

Whether TUSLA was justified in refusing access to records concerning a report about the applicant's son, on the grounds that the records are exempt from release under sections 30 and 37 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

The applicant acted through his solicitors in this review.
On 7 October 2016, the applicant made an FOI request to TUSLA for a copy of the final report TUSLA made in relation to his son. On 10 November 2016, TUSLA issued a decision, in which it granted access to some information and refused access to the remaining information, under sections 30(1)(a) (functions and negotiations) and 37(1) and 37(7) (personal information) of the FOI Act. On 25 November 2016, the applicant sought access to the withheld information in order "to get clarity" on certain matters. TUSLA issued an internal review decision to the applicant by letter dated 17 February 2017, in which it affirmed its original decision and clarified two points for the applicant. On 28 April 2017, the applicant applied to this Office for a review of TUSLA's decision.
In reviewing this case I have had regard to TUSLA's decision on the matter; TUSLA's communications with this Office; the applicant's communications with this Office; communications between the applicant and TUSLA on the matter; the content of the withheld records provided to this Office by TUSLA for the purposes of this review and the provisions of the FOI Act.

Scope of the Review

This review is concerned with whether TUSLA was justified in refusing access to the following records, under sections 30 and 37 of the FOI Act: 1, 3 - 13 and 15 - 19. I have adopted the numbering used by TUSLA in its schedule of records.

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points.

First, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on TUSLA to satisfy me that its decision is justified.

Secondly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicant's reasons insofar as they might be construed as a public interest argument.

Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is limited.

Fourthly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 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, I am not in favour of the cutting or "dissecting" of records to such an extent.

Finally, with certain limited exceptions (e.g. sections 37(2) and 37(8), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Section 37 - Personal Information

Sections 37(1) and 37(7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: "(i) information relating to the educational, medical, psychiatric or psychological history of the individual", "(xiii) information relating to property of the individual (including the nature of the individual's title to any property" and "(xiv) the views or opinions of another person about the individual".

Section 37(7) provides that access to a record which relates to the requester shall be refused if 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 people other than the requester. This is subject to certain exceptions, which I consider below.

The applicant submits that section 37(2)(a) applies in this case, on the basis that the personal information which he seeks relates to him. He says that the report in issue contains an untrue and inaccurate statement about him which is presented as fact and which he is concerned may have been given to TUSLA on a malicious basis. The applicant advises that he is seeking clarity on a number of issues, including: who made the statement about him; how that statement came to be included in an official report; and the impact of the statement on the investigation concerned.

The records contain information which relates primarily to the applicant's son, in addition to the applicant and other individuals. The information relating to people other than the applicant relates to their home-life, medical and psychological histories and property, as well as views or opinions about those individuals. Accordingly, releasing the records would involve the disclosure of personal information relating to individuals other than the applicant.
In theory, one could extract certain words or phrases from the records which relate solely to the applicant. I have considered whether this would be practicable in the circumstances. However, those words and phrases appear in the context of other words and phrases which relate to the other individuals. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records.

I therefore find that the records are exempt from release under sections 37(1) and 37(7) of the FOI Act. This finding is subject to the provisions of sections 37(2) and 37(5), which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the records. That is to say, (a) having reviewed the records, I can say that the information contained in them does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I am then required to consider section 37(5) as it applies to the records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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 appreciate that the applicant wishes to identify the source of the statement concerned. However, I may only take into account his reasons for seeking the records to the extent that they identify a public interest. I believe that the interest which he identifies is more properly viewed as a private interest. I consider that I am supported in this opinion by the High Court decision of FP v The Information Commissioner [2016] IEHC 771. There, the Court found that the public interest in granting access to information was not to be determined on the basis of the appellant's personal circumstances.

I must also bear in mind that release under the FOI Act is tantamount to release to the world at large. Accordingly, this is not a question of whether to disclose the records to the applicant alone. It is a question of whether to disclose the records to the world at large.

In my view, the information which the records contain is inherently private. It relates to the home-life and health of individuals other than the applicant and is very personal to the third parties concerned. In the circumstances, I do not consider that the applicant has identified a public interest which outweighs the third parties' right to privacy. The applicant's belief that the statement about him may have been made maliciously does not affect my view on this.

On balance, I do not consider that the public interest that the request should be granted outweighs the Constitutional right to privacy of the individuals to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances.

It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Section 37(8)

For completeness, I should note that the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 do not apply to this review. In accordance with section 37(8) of the FOI Act, these Regulations provide for a right of access by parents or guardians to personal information of individuals who, at the time of the request, have not attained full age, and where the release of the information would, in the opinion of the public body and having regard to all the circumstances, be in the child's best interests.

If the records in this case contained personal information relating only to the applicant and his son, the applicant may have had a right of access under the Regulations, in his capacity as a parent of the child, if the release of the information was determined to in the best interests of his son. However, these Regulations do not apply in this case, where the information is joint personal information; i.e. personal information relating to a child and third parties other than the applicant.

Finding

Having regard to the above, I find that TUSLA is justified in refusing access to the records, under sections 37(1) and 37(7) of the FOI Act. In view of this finding, I am not required to consider section 30 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm TUSLA's decision, under sections 37(1) and (7) of the FOI Act.

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