Whether TUSLA was justified in its decision to refuse the applicant's request for all Comprehensive Assessments of home school education for children during 2016 under section 37(1) of the FOI Act

14/02/2018

Background

On 29 August 2017, the applicant sought access to all Comprehensive Assessments of home school education for children during 2016, while acknowledging that personal details would have to be redacted. In its decision of 4 September 2017, TUSLA refused the request on the basis that sections 37(1) and 42(m) of the FOI Act applied. The applicant sought an internal review on 19 September 2017 following which TUSLA affirmed its original decision. On 10 October 2017, the applicant sought a review by this Office of TUSLA's decision.

In conducting this review, I have had regard to the submissions of the applicant, and TUSLA.  I have also had regard to the content of the relevant records.  I have decided to conclude the review by making a formal, binding decision.

Scope of Review

This review is concerned solely with whether TUSLA was justified in refusing access to the comprehensive assessments sought under sections 37 and 42 of the FOI Act.
 

Analysis and Findings

In its submission to this Office, TUSLA provided background information on home education. The Education (Welfare) Act, 2000 (the Act of 2000) sets out to recognise the rights of parents under Article 42(1) of the Constitution of Ireland which acknowledges the family as the primary and natural educator of the child, while equally acknowledging Article 42 (3.2) whereby the State shall, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual, and social.

Section 14 of the Act of 2000 provides for the establishment of a register of children receiving education in a place other than a recognised school, and for the carrying out of assessments for the purpose of determining whether the child is receiving a certain minimum education. In 2003, the then Minister for Education and Science published "Guidelines on the Assessment of Education in places other than recognised schools". The guidelines explain that there are two distinct stages of assessment. The first stage assessment is carried out by an authorised person in consultation with the parent without necessarily visiting the place where the education is provided or meeting the child concerned. The second stage involves the authorised person visiting the place at which the child is being educated and engaging with the child. For the purpose of the guidelines, the terms Preliminary Assessment and Comprehensive Assessment are used to distinguish between the two stages.

According to TUSLA, there were 502 assessments carried out in 2016, of which 10 were comprehensive assessments. It is these 10 assessments that are sought by the applicant. They comprise 10 completed Comprehensive Assessment Schedules in respect of various children. It is important to note that the guidelines published by the Minister contain a copy of the Comprehensive Assessment Schedule that is used by authorised persons to assist in the recording of evidence during the period of observation and evaluation. The Schedule contains a detailed description of the matters evaluated, including the learning environment, the learning encounter, the educational experience (including intellectual, physical, social, emotional and moral development), and monitoring and assessment of the child's progress. The authorised person provides an evaluation of whether the education provided or to be provided is "a certain minimum education, moral, intellectual and social".

Section 37

The Department refused access to the assessments under sections 37(1) and 42(m) of the FOI Act. Section 37(1) provides for the mandatory 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. It should be clear from my description above of the records sought that they contain personal information relating to individuals other than the requester. I am satisfied that section 37(1) applies to the records.

Section 37 contains other provisions that serve to disapply section 37(1), namely subsections (2) and (5). I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides for the release of information to which section 37(1) applies where (a) the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned or (b) the grant of the request would benefit the individuals concerned. I am satisfied that subsection (b) does not apply.

On the question of whether subsection (a) applies, the FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. Indeed, under section 11(3), in performing any function under the Act, public bodies must have regard to

the need to achieve greater openness in its activities and to promote adherence by them to the principle of transparency in government and public affairs,

the need to strengthen the accountability and improve the quality of decision making of public bodies, and the need to inform scrutiny, discussion, comment and review by the public of the activities of public bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of public bodies.

On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "the right to privacy"). It is also worth noting that the right to privacy has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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. 

It seems to me that the public interest in the promotion of transparency and accountability concerning the role of TUSLA in relation to the education of children in places other than recognised schools has been served to some extent by virtue of the information that is currently publicly available in relating to that matter. The guidelines are extensive in terms of explaining the assessments to be undertaken and the Comprehensive Assessment Schedule accompanying the guidelines provides significant details in relation to the nature of the assessments and the type of evidence collected and considered.

The question I must consider, therefore, is whether the public interest in further enhancing that openness and transparency by releasing the record sought outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. In my view, it does not. I do not consider that the disclosure of the records would significantly enhance the reader's understanding of the manner in which TUSLA has carried out its relevant functions. On the other hand, disclosure of the records would involve the disclosure of information of an inherently private and sensitive nature, primarily relating to the circumstances of the children in question. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that TUSLA was justified in refusing to grant access to the comprehensive assessments under section 37(1) of the FOI Act. Given my finding that section 37(1) applies, I have not considered the applicability of section 42(m) in this case, although I would note for TUSLA's benefit that section 42(m) is concerned with the protection of the source of confidential information as opposed to the protection of the information itself.

Section 18

For the sake of completeness, I wish to address the fact that the applicant indicated that he would be prepared to accept copies of the reports with the redaction of personal details. 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 FOI 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).

On this point, TUSLA stated that consideration was given to releasing the records in redacted form but it was noted that significant redaction would have been necessary to protect the privacy of the individuals whose personal details have been captured on the records. It stated that it considers the redaction of names, addresses, previous school information, and details of services involved with the child or family to be insufficient to protect the identity of the children and families involved from either the home education community or the wider community at large. It stated that in arriving at that view, the uniqueness of the education approach has been borne in mind and the potential for local knowledge of the families concerned.
 

This Office takes the view that neither the definition of a record under section 2 of the Act 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.  Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.  Having examined the records at issue, I share TUSLA's concerns as to the difficulty in sufficiently redacting the records to protect the identities of the individuals concerned whilst ensuring that the copies provided are not misleading. It is relevant to note again that only 10 such comprehensive assessments have been carried out.  I find, therefore, that section 18 does not require the release of redacted records in the circumstances of this case.
 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of TUSLA to refuse access to the comprehensive assessments under section 37(1).
 

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