Case Number: 170302

Whether TUSLA was justified in its decision to refuse access to further records relating to the applicants' infant daughter under sections 15(1)(a) and 37(1) 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

By letter dated 22 February 2017, the applicants, through their solicitor, made a request to the HSE for all records held in respect of their infant daughter. On 2 March 2017 the HSE sought clarification on the FOI request. The applicants subsequently confirmed that the request related to the Child and Family Agency (TUSLA). On 28 March 2017, TUSLA decided to part-grant the request. While it granted full access to 28 pages of information, it refused access to three pages and granted partial access to two other pages with the redaction of certain information under section 37 of the FOI Act.

By letter dated 5 May 2017, the applicants sought an internal review of TUSLA's decision. On 29 May 2017, TUSLA affirmed its original decision. In doing so, it explained that the three pages to which access had been refused in full related to parties wholly unconnected to the applicants' case and had been inadvertently been provided to the FOI Office. On 9 June 2017 the applicants sought a review of TUSLA's decision.

During the course of the review, the applicants submitted that certain records had not been considered for release. They stated that their appeal was in respect of the extent of redaction of the relevant records and on the basis that certain records mentioned had not been provided.

In an email dated 3 October 2017, Ms Hannon of this Office provided the applicants with details of the searches undertaken by TUSLA in an effort to locate relevant records and informed the applicants of her view that TUSLA was justified in deciding that no further records exist and that the redacted information was personal information relating to third parties. Ms Hannon invited the applicants to make a further submission and also offered them an opportunity to withdraw their application for review.

No further submissions were provided by the applicants. Therefore, I have decided to bring this case to a close by way of a formal, binding decision. In reviewing this case I have had regard to correspondence between the applicants and TUSLA and to the correspondence between this Office and both the applicants and TUSLA on the matter. I have also had regard to 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

I have adopted the numbering used by TUSLA in the schedule of records it prepared in response to the FOI request. I note that TUSLA indicated, in its internal review decision, that pages 18, 25 and 26 were unconnected to the applicants. Having examined the records, it is apparent that the relevant pages are, in fact, 18, 19 and 20 and therefore fall outside the scope of this review. Pages 25 and 26 contain minor redactions.

Accordingly, this review is concerned solely with whether TUSLA was justified in redacting certain information from pages 25 and 26 under section 37(1) of the FOI ACT and in refusing access to any additional records on the ground that no additional relevant records exist or can be found.

Analysis and Findings

Section 15(1)(a)- Adequacy of Search
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 role of this Office 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 decision and I 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.

The applicants contended that certain records associated with their request were not identified by TUSLA and included in the records released. As I have outlined above, Ms Hannon of this Office provided the applicants with details of TUSLA's account of the searches that were undertaken for the records. While I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision.

In summary, TUSLA explained that all records relating to referrals about a child are maintained on its IT system, called RAISE, and includes any correspondence received relating to the case. TUSLA stated electronic searches were undertaken and relevant members of staff were consulted. In relation to other records between individuals named by the applicants, TUSLA explained that the individuals in question are HSE employees at Waterford General Hospital and suggested that if any such records exist, they may be held by the HSE. It is open to the applicants to make a new FOI request to the HSE for any relevant records it may hold at the Hospital.

In view of the information provided by TUSLA relating to the searches undertaken, I consider that TUSLA has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that a public body shall refuse to grant 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. For the purposes of the Act, personal information is 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 an FOI body on the understanding that it would be treated by it as confidential.

The information redacted from pages 25 and 26 comprise personal mobile phone numbers and an address relating to third parties. I find that section 37(1) of the Act applies to the information redacted by TUSLA. Section 37 also contains a number of provisions that serve to disapply section 37(1). I am satisfied that none of those provisions serve to disapply section 37(1) in this case. I find, therefore, that TUSLA was justified in redacting certain information from pages 25 and 26.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of TUSLA in this case, under sections 15(1)(a) and 37(1) 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.

Stephen Rafferty
Senior Investigator