Case Number: 170236

Whether TUSLA was justified in refusing to fully grant the applicant's request for records concerning her involvement with social workers in relation to her children, from June 2007 to November 2011

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

On 8 February 2017, the applicant made an FOI request to the Department of Public Expenditure and Reform (DPER). She asked for all her personal information relating to the time that she had been involved with social workers in relation to her children, from June 2007 to November 2011, and described various records that should be included. DPER told her that it did not hold such records. It transferred the request to the HSE, which appears to have, in turn, sent the request to TUSLA (which took over the HSE's child protection functions in 2014). TUSLA appears to have received the transferred request at some point after 14 February 2017.

TUSLA's decision of 31 March 2017 told the applicant it was granting access to some relevant records, in full and in part. It said it was refusing to grant access to the rest of the records, on the basis that they contained either the personal information of other parties, or the joint personal information of the applicant and others (section 37 of the FOI Act refers). It also said it had consulted with the applicant's children, who did not live with her, and that they had not consented to TUSLA's release of any records about them. The applicant sought an internal review of this decision on 5 April 2017. TUSLA's internal review decision of 27 April 2017 affirmed its refusal to grant access to the remaining information under section 37 and also under section 42(m), which concerns information given in confidence in relation to the enforcement or administration of the law.

The applicant sought a review by this Office of TUSLA's decision, which was received on 11 May 2017.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, TUSLA, and the applicant. I have had regard also to the records considered by TUSLA and to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether TUSLA has justified its refusal to fully grant the applicant's request. I cannot take into account any dissatisfaction the applicant may have with how TUSLA dealt with her request and internal review application.

Findings

While TUSLA has relied on a number of exemptions in the FOI Act, I will consider section 37 first because it is the most relevant in the circumstances.

Section 37(1)
Although I cannot disclose the contents of the records, I am satisfied that they contain sensitive personal information. Some of that information concerns the applicant's children and other parties. In some instances, such information is inextricably linked to information about the applicant.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While TUSLA has released details from certain records while redacting other parts, this Office takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs. It seems to me that, even if it was practicable to do so, directing release of any further excerpts that refer to the applicant alone would lead to the resulting copies of the records being misleading.

Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. Section 37(7) provides that, notwithstanding subsection (2)(a) (which provides that section 37(1) does not apply where the information relates to the requester), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester. This is often referred to as "joint personal information".
The applicant says that she was granted access to the names of various third parties and that TUSLA's decisions in this regard are inconsistent. Even if TUSLA has released details concerning persons who are not public servants, this does not create any precedent that entitles the applicant to either further personal information about those persons, or personal information about other parties.

Accordingly, I find the records to be exempt under section 37(1) of the FOI Act.

Section 37(8)/S.I. No. 218 of 2016
Regulations made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act (i.e. Statutory Instrument (S.I.) No. 218 of 2016) provide for the release of information that is exempt under section 37(1) of the FOI Act in certain circumstances. The Regulations potentially provide for the applicant to access personal information of those of her children who are not yet 18 (the "minor children") and the joint personal information of the applicant and the minor children.

Taken together, Articles 4a, 5 and 6 of S.I. No. 218 provide for the release, to a parent or guardian, of records relating to a person that on the date of the FOI request has not attained full age, and where granting the request would, in the opinion of the head of the FOI body having regard to all the circumstances, be in the best interests of the person who has not attained full age.

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 (the records at issue in that case) is in the best interests of the child. The Supreme Court explained: "The presumption is that the release of such medical information would best serve the interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount." Furthermore, the Supreme Court commented that the views of a minor nearing the age of majority, on the question of the release of information affecting his or her privacy rights, are "very relevant".

I must also take into account Guidance, published in May 2017 by the Minister for Public Expenditure and Reform under section 48(1) of the FOI Act, regarding access by parents or guardians to records relating to minors (http://foi.gov.ie/download/cpu-notice-25-access-to-records-relating-to-deceased-persons-prepared-under-section-378-of-the-freedom-of-information-act-2014). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidelines when performing their functions under the FOI Act.

In particular, section 2.1(B) of the Minister's Guidelines list the following as factors to be considered:

• would the minor consent to the release of the material? While the fact that a minor might object to release of the information might not always be enough in itself to justify refusal, it will always be a factor that must be taken into account;
• would release of the material damage the minor in some way?; and
• are the records held in the minor's own right?

The Guidelines also set out when, and how, an FOI body might consult with a minor.

As the applicant knows, it is TUSLA's view that, having regard to all the circumstances, release of information to her about her minor children would not be in the children's best interests. In summary, it says it had serious concerns about her ability to take proper care of her children. This resulted in her older children being placed in their father's care in 2007. It says that, subsequent to the Gardai becoming involved, the applicant agreed to her younger children also being placed in the care of their father. TUSLA appears to be satisfied with the care the children are currently being given. Its submission also refers to the proximity of the relationship between the applicant and her children. As the applicant is also aware, TUSLA consulted with the younger (minor) children about the release of their personal information to the applicant. They did not consent.

The applicant's position is that her children (aged 15, 16 and 17) are under 18. She clearly considers that none of them have capacity to understand the issues about which they were consulted. She also takes issue with how, in such circumstances, TUSLA consulted the children and questions whether another party (external to TUSLA) might have influenced the children to withhold consent.

The refusal of a minor to give consent to the release of information affecting their privacy rights does not, of itself, determine the matter. However, in the normal course, I would consider the views of minor children of the ages involved in this case to be "very relevant". While I note the applicant's concerns about the validity of those views, I see no reason to seek further comment from TUSLA on the matter. It is evident from the above that the lack of consent from the applicant's minor children is not the only factor relevant to TUSLA's view that release of information about them would not be in the children's best interests.

The applicant says that TUSLA's concerns are "character bashing", and that it is making it sound as though she is seeking custody of the children or making allegations about the care they are being given. However, I am obliged to consider all circumstances set out by an FOI body when considering if release of information to a parent or guardian is in a minor's best interests. As already noted, the various records contain sensitive information. It seems to me that, aside from any questions there may be over the minor children's refusal to consent, TUSLA has given me sufficient argument to have justified its position that granting the request would, having regard to all the circumstances, not be in the best interests of the applicant's minor children.

Accordingly, I find that the applicant is not entitled to access to the personal information of her minor children, or the joint personal information of the applicant and the minor children, further to the provisions of S.I. No. 218 of 2016.

Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2(b) to (e). I am satisfied that none of those circumstances arise in this case in relation to the information solely about parties other than the applicant, or the various joint personal information. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue 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.

In relation to section 37(2)(b) in particular, I note the applicant's position that her minor children's refusal of consent may not be valid. However, neither has she provided me with any evidence that they, or her other children, or any other party, would have consented to the release to her of their personal information.

Section 37(5)
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I have no reason to consider that the release of the information at issue would benefit the various third parties to whom the records relate, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any arguments in this regard.

On the matter of where the public interest lies (section 37(5)(a) refers), I have had 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] 1 IR 729, [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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

I accept that the FOI Act itself recognises a public interest in ensuring that FOI bodies are open about, and can be held accountable for, how they carry out their functions (in this case child protection functions). However, there is 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). This is recognised by the language of section 37 and also by the Long Title to the FOI Act. 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.

The public interest in favour of release of the withheld records has been met to an extent by the information released to date. I accept that release of the details concerned would further enhance the public interest in openness and accountability regarding the State's exercise of child protection functions in respect of the applicant's children. However, the withheld records contain very sensitive personal information. I also accept that their release would result in a significant breach of the rights to privacy of the parties whose personal information would be released. On balance, I find that the weight of the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld.

In the circumstances, there is no need for me to consider the other exemptions relied on by TUSLA in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA's refusal to fully grant the applicant's request, on the basis that the requested information is exempt under section 37 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