Whether TUSLA is justified in refusing to grant the applicant's request for her records under section 15(1)(a), on the basis that after reasonable searches have been carried out, the records cannot be found

5 April 2018

Background

On 12 May 2015, the Health Service Executive (the HSE) received the applicant's FOI request for her file from the year 1990. By way of background to the request, I understand that the applicant's children were fostered in or around this time. The applicant also says that she lived with the foster family for a stage. 

The HSE's decision of 15 September 2015 refused to grant the request, saying that no records had been found (section 15(1)(a)). The decision also described various steps the HSE had taken, including various contacts it had made with TUSLA, in order to find the records. The applicant sought an internal review of the HSE's decision on 8 October 2015. The HSE did not issue an internal review decision within the three week statutory timeframe, effectively affirming its refusal of the request. 

On 4 July 2017, this Office received the applicant's application for a review of the HSE's refusal of her request. The FOI Act envisages that applicants should generally seek reviews by this Office within six months of the expiry of the date by which an internal review decision should have issued. However, the Act gives this Office discretion to accept late applications for review. This Office decided to exercise its discretion to accept the application in this case, particularly given the HSE's explanation on 6 July 2017 that an internal review decision had not issued because searches, being carried out by TUSLA, were continuing. The HSE also said that the requested records would be held by TUSLA.

It is worth explaining at this point that TUSLA was created in 2014. It took over responsibility for what were previously the HSE's Children and Family Services, the Family Support Agency and the National Educational Welfare Board. Staff and services were transferred from these bodies to TUSLA. While records may not have physically moved location, they nonetheless came under TUSLA's control. This means, for the purposes of FOI, that the records the applicant had requested would have been held by TUSLA rather than the HSE.

Section 12(3) of the FOI Act provides that, where an FOI body receives a request for records that it knows are held by another body, it shall provide the other body with a copy of the request and tell the applicant that this has been done. The other body is then required by the Act to process the request as if it had been made directly to it. It is not clear to me why the HSE did not formally transfer the applicant's original request to TUSLA, further to section 12(3), when it was received. 

In the circumstances, on 11 August 2017, this Office asked TUSLA to make a submission showing that it had taken reasonable steps to look for the applicant's records. 

This review took considerable time to conclude. This Office's procedures generally give FOI bodies one chance to make a submission, within two weeks of being requested to do so. However, in the circumstances of this case, TUSLA requested and was granted additional time to carry out further searches and to make its submission. 

TUSLA ultimately made a submission on 7 November 2017. However, it did not contain enough detail for this Office to make a finding on whether reasonable searches had been carried out. Neither did the submission reflect the detail of various searches to which TUSLA had generally referred in earlier contacts. The Investigator brought these matters to TUSLA's attention on 7 November 2017 and, in further contacts, asked for particular further details to be provided by 14 December 2017. She made it clear that no further extensions of time could be given. 

TUSLA did not provide the requested details by 14 December 2017. On 15 December 2017, this Office served a notice on TUSLA, under section 45 of the FOI Act, requiring it to provide more extensive details of its searches. TUSLA considers that it was unreasonable of this Office to take this step. 

I recognise that TUSLA went to considerable lengths to look for the applicant's records and took its failure to find the records very seriously. I also appreciate that, like all FOI bodies, TUSLA does not have unlimited resources to devote to FOI. However, the onus is on TUSLA to justify its decision to this Office and it was not possible for the Commissioner to make findings on the basis of the submission of 7 November. TUSLA is well aware of this Office's published procedures for carrying out reviews generally. The fact remains that submissions were initially invited from TUSLA some four months before the issue of the section 45 notice. One cannot lose sight of the fact that the applicant in this case made her FOI request as far back as May 2015. 

On 22 December 2017, TUSLA responded to the notice of 15 December and since then contacted this Office with details of additional searches carried out. 

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

Scope of the Review

This review is confined to whether or not TUSLA has justified its refusal to grant the applicant's request on the basis that the records cannot be found after reasonable steps have been taken to look for them.  

It is not normally the function of this Office to search for records. This position was upheld by the High Court in Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA)). Neither does this Office have remit to consider, or making any finding on, record management practices in FOI bodies generally.

Findings

Section 151)(a)
TUSLA acknowledges that it should, at least, hold paper files ("hard copy" files) about the applicant and/or her family, because child care legislation requires such records to be held indefinitely. It says that electronic databases established in 2007 and 2011 do not appear to have captured historical records. 

It can find no records about the applicant, and it maintains that at this stage it has taken reasonable steps to find such records and that section 15(1)(a) applies. While TUSLA has found a small number of records containing general details about the applicant's children or their foster carers, the applicant did not seek such records and therefore they are outside the scope of my review. I would also add that the applicant would not necessarily be entitled to access to those records under FOI even if they were covered by her request. 

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of a public body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. It is also worth noting that a decision from this Office may find that a public body has conducted reasonable searches where records that are known to exist cannot be found at a particular point in time. Such a finding does not rule out the possibility that records may come to light at a later stage. 

This Office's letter to the applicant of 22 January 2018 describes the searches TUSLA says it carried out in this case. In this case I consider it appropriate for this decision to highlight the breadth of searches that TUSLA says it carried out in this case. 

Searches Carried Out

According to TUSLA's submission: 

When files are closed (such as files about the applicant and/or her family), the hard copy files are archived by an external company (Iron Mountain). Files are stored in boxes in Iron Mountain's storage facilities under the children's names in alphabetical order (surname, forename). The boxes also list date of birth, address, and indicate whether the file contained single or multiple family details. TUSLA obtained a full inventory report from Iron Mountain and searched using the applicant's surname and variations of it (none of which I can include here to protect the applicant's privacy), as well as her children's forenames and the address that the family lived at at the time of the fostering arrangement. It retrieved certain boxes from Iron Mountain that TUSLA staff searched. 

TUSLA also retrieved a particular investigation file in case records relating to the applicant and/or her family were misfiled in it (details were provided to this Office but cannot be included in this decision to protect the privacy of other parties). TUSLA also made enquiries with a social worker remembered by the applicant and his comments appear to have prompted some of the searches below.

Records about the applicant and her family would have been held in the "[GEOGRAPHIC AREA]" area. In this area, TUSLA says that it searched:

• the Boarded Out Register for [GEOGRAPHIC AREA], as well as Child in Care Registers,
• Historical Once-Off Referrals 1988-1998,
• index cards, 
• the file inventory for [GEOGRAPHIC AREA], 
• the database of active files (which only dates from 2011),
• the [NAME OF HOSPITAL] (which is still an HSE facility) Archive. It searched all files in outside storage facilities on the [NAME OF HOSPITAL] grounds that were used to store patient charts and other records. TUSLA's submission refers to 10 hours spent searching 30 file boxes and lever arch files, which I take to be these particular searches. It also refers to 15 hours of searches of lever arch files and file boxes that had been held in the former Regional Child Care Specialist's office in [NAME OF HOSPITAL]., 
• areas in the Area Manager's Office holding active files,
• fostering and aftercare services in [GEOGRAPHIC AREA] and 
• former offices in [VARIOUS LOCATIONS]. In particular, TUSLA says that 30 hours of searches were carried out in a particular location in [NAME OF TOWN] (one storage unit containing child protection notifications from 1998-2002, five filing cabinets containing child protection files from the mid 1990s, and two storage units/rooms containing between 30-40 file boxes of records of meetings, policy documents, and miscellaneous correspondence). 

TUSLA says that it also carried out searches in other locations in case records had been filed there by mistake. It carried out searches in the "[GEOGRAPHIC AREA]" area of:

• the [LOCATION] Area Manager's office, 
• the Boarded Out Register for [GEOGRAPHIC AREA] 1965-2000, 
• [GEOGRAPHIC AREA] historical archived paper files for children in care 1990-2017,
• Notifications of child protection reports to the Director of Community Care (although I note that the files searched date from 1994-2017), 
• records of child protection conferences held from 1990-2017, 
• the [LOCATION] area children in care database, and 
• the national child care information system (which I understand dates from 2014). 

Finally, TUSLA says that further searches were carried out of National Adoption Services in TUSLA Head Office and also of a Department of Health database (the AIRR database), which concerns children placed in industrial schools. The Business Manager in the HSE's Consumer Affairs searched for records in the [GEOGRAPHIC AREA] offices and an electronic search was carried out by [NAME OF FIRM] Solicitors (which I take to have been engaged by the HSE/TUSLA in relation to child protection legal issues).

TUSLA maintains that the above details show that it has carried out reasonable searches for the applicant's records.

Analysis

This Office put the above details to the applicant, who has explained why she thinks that records about her should exist and should be found.

For its part, TUSLA accepts that records should exist. At this point I should note that, given that social care services are concerned with children rather than adults, any records created would have been more likely to concern the applicant's children and their fostering arrangements than the applicant specifically. However, with the exception of the small number of records referred to above, I understand that no substantive files about the applicant's children and/or their foster carers have been found. Nonetheless, I am satisfied, based on its submission, that TUSLA has taken the fact that it cannot find any records about the applicant and her family very seriously indeed.

TUSLA's submissions indicate that its staff spent considerable time searching various locations that should hold hard copy records, as well as files in areas and/or files of an age that would not be expected to hold relevant records. I recognise how important it is for the applicant to find her records, and I can understand why she might feel that I should direct TUSLA to keep searching for her records. However, section 15(1)(a) requires only the taking of reasonable steps by an FOI body to ascertain the whereabouts of a record. I do not believe that the FOI Act requires me to direct TUSLA to indefinitely carry out general searches for hard copy records, or to search new locations, or types of files, without there being some reasonable possibility that they hold the applicant's records. I accept that TUSLA has looked in all locations it can think of that might hold records, and I am unable to identify further specific searches that TUSLA should carry out in this case. Indeed, it seems to me that it is impossible to determine at what point the records may have gone missing (for instance, before or after TUSLA was established).

I am satisfied, based on its submissions, that TUSLA has carried out reasonable searches for the applicant's records. TUSLA's searches in this case may be perceived as exceeding the threshold of what one would consider in other cases to be reasonable. However, I consider it appropriate for TUSLA to have taken the steps it took in this case, having regard to the indisputable facts that it is legally obliged to hold child care records indefinitely and yet no substantive files about the applicant and/or her family's fostering arrangements have been found. 

Having given very careful consideration to the circumstances of this case, I am satisfied that TUSLA has demonstrated that it has taken all reasonable steps to search for hard copy records relevant to the applicant's request. I find that section 15(1)(a) of the FOI Act applies. In making this finding, I note that TUSLA says, if any further locations come to its attention that may contain records, it will search them. I expect that if records about the applicant were to be found at any stage, TUSLA would inform her and consider them for release. 

I also have no reason to consider TUSLA to hold electronic records about the applicant, and I find section 15(1)(a) to apply to such records accordingly. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA's refusal to grant the applicant's request under section 15(1)(a) 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