Whether TUSLA was justified in refusing to fully grant the applicant's request for her file as held by its adoption department

31 July 2018

Background

On 7 December 2017, the applicant made an FOI request to TUSLA for her file as held by its adoption department and all minutes of meetings that year. Although I cannot describe the background to her request in any detail in order to protect third party privacy rights, the records concern matters relating to the adoption of her child. 

TUSLA's decision of 2 January 2018 partially granted the request which it described as seeking only minutes of meetings for 2017. It relied on sections 37 (personal information) and 41(1)(a) (disclosure prohibited by law) in refusing to fully grant the records concerned. The applicant sought an internal review on 15 January 2018, in which she made clear that her request had sought her full file from 1999 (including all records of her stay in a particular residential centre). 

TUSLA's internal review decision of 9 March 2018 said that it would make some further records or parts of records available to a health professional of the applicant's choice. It relied on section 37(3) of the FOI Act which provides for the refusal of a request where, generally speaking, the FOI body considers that disclosure of the records to the requester would be prejudicial to his or her physical or mental health. Section 37(4) requires that access to such records be made available to a health professional with expertise in the subject matter of those records of the requester's choice. TUSLA refused access to the rest of the records under sections 37 and 41 of the FOI Act. 

On 23 March 2018, the applicant sought a review by this Office of TUSLA's decision. During the review, TUSLA found a small number of records relating to the applicant's stay in the residential centre. It granted her access to the records subject to the redaction of details concerning a third party, which it withheld under section 37(1). 

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 details of the above exchanges 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 Review

This Office told the applicant that the review would not consider TUSLA's reliance on section 37(3), in that it was understood that she had availed of its offer under section 37(4) to make certain records available to a health professional. She did not comment on this and I have not considered section 37(3) further.

This review is confined to whether TUSLA has justified its reliance on the other provisions of the FOI Act under which it refused to fully grant the applicant's request. It includes whether TUSLA has justified its position that it carried out reasonable searches for records of the applicant's stay in the residential centre. 

Findings

In making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the description I can give of the records and of the submissions is very limited. 

In addition, 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 in this case TUSLA has redacted portions of records and granted the remainder, the Commissioner 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. 

Section 15(1)(a) - adequacy of searches

The applicant maintains that further records should exist regarding her stay in the residential centre. 

TUSLA says that the residential centre's records were transferred to the HSE in 2011. It is worth explaining at this point that TUSLA was created in 2014 and took over responsibility for matters dealt with by the HSE's Children and Family Services and other agencies responsible for certain child welfare matters. References to TUSLA in the rest of this decision can be taken as referring to the HSE, as appropriate, or indeed the HSE's predecessor, the relevant Health Board. 

TUSLA has provided this Office with what seems to me to be a comprehensive procedure for searching for records relating to persons who stayed in the residential centre. It says that it followed the procedure in looking for records relating to the applicant. 

TUSLA's position is that it has carried out reasonable searches for records relating to the applicant and that no further records can be found. This is, effectively, a refusal to grant further records under section 15(1)(a), which provides that a request for access to a record may be refused if the record does not exist, or if searches for a record that is known to exist (but cannot be found) have been reasonable. 

This Office provided the applicant with the details of the searches that TUSLA says it has carried out, which I see no need to repeat in this decision. She maintains that she needs further records, including notes taken by staff whom she says subjected her to various tests even though she had her own doctor. She also takes issue with certain dates on the records that have been granted to her. 

While I accept the applicant's position that it is reasonable to expect there to exist further records, such as those of a clinical nature, this Office does not expect FOI bodies to keep looking for records indefinitely. As the applicant knows, this part of my review is confined to considering whether or not TUSLA has justified its position that it has taken reasonable steps to locate records of her time in the residential centre. It is open to this Office to find a public body to have conducted reasonable searches, even if records that are known to exist cannot be found. 

In this case, TUSLA says that it has complied with its procedures for looking for records of the sort that the applicant wishes to obtain and that it cannot find any further records relating to her. I consider it to have justified its position that it has taken reasonable steps to look for further records relating to the applicant. I find section 15(1)(a) to apply. 

The accuracy or otherwise of the records is not a matter for this review. It is open to the applicant to apply to TUSLA under section 9 of the FOI Act to have personal information about her amended, if she believes the details in the records to be incorrect, incomplete or misleading. However, I note that the applicant appears to consider certain dates on the records to indicate that she was admitted to the residential centre at an earlier date than when she was actually admitted, and that she left much later than was the case. I have not confirmed the matter with TUSLA because it is not a matter for this review. However, the dates to which the applicant refers could simply refer to the start and end dates of the particular admission book from which entries relating to her were extracted. 

Section 15(2)

TUSLA's schedules of the records indicate that it has refused a number of birth and marriage certificates under section 37 of the FOI Act. Section 15(2) of the FOI Act provides for the refusal of records that are available for inspection whether upon payment or free of charge or records copies of which are available for purchase or removal free of charge. I understand that copies of such certificates can be made available to members of the public by the Registrars of Births, Marriages and Deaths or the General Registration Office. I find such records to be exempt under section 15(2) of the FOI Act. 

Section 37

Section 37(1)

In the circumstances of this case, TUSLA says that section 58 of the Adoption Act, 2010 is relevant, which provides that any rights a parent may have had regarding their child are relinquished at the time of adoption. Furthermore, while the FOI Act generally enables a parent to access a record containing personal information about their minor child, this does not entitle the parent to the personal information of other parties that may be in the record or to information about a child who is no longer a minor. The applicant has not commented on these matters, all of which I consider to be relevant in the circumstances of this case. 

Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information. "Personal information" is defined at section 2 of the FOI Act as "information about an identifiable individual that - 

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or 
(b) is held by a public body on the understanding that it would be treated by it as confidential"

Section 2 also lists 14 examples of what must be considered to be personal information. They include (ii), "information relating to the educational, medical ... history of the individual", (ii) information relating to the financial affairs of the individual, (iii) "information relating to the employment or employment history of the individual" and (xiv) "the views or opinions of another person about the individual". Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. 

I have given careful consideration to the content of the records and also the context in which they were created. While I am constrained in the description I can give of the withheld information, I am satisfied that it meets both definitions of what comprises personal information. This is sufficient for me to find the information to comprise personal information. However, I am also satisfied that it falls into a number of the examples of what comprises personal information. 

I find that the records contain personal information about identifiable individuals other than the applicant, or personal information about the applicant that is inextricably linked to personal information about other identifiable individuals (i.e. joint personal information). Furthermore, the fact that the applicant may have created some of the records, or received some of the records outside of FOI, does not mean that section 37 cannot apply to them. 

In so far as the joint personal information is concerned, and while it is the case that section 37(2)(a) provides for the release of information relating to the requester, section 37(7) must also be considered. Section 37(7) provides for refusal of a request where access to the record sought would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester. In other words, notwithstanding the provisions of section 37(2)(a), section 37(7) requires the refusal of joint personal information.

I find the withheld records or parts of records to be exempt under section 37(1) of the FOI Act. 

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I have already dealt with section 37(2)(a) and I am satisfied that the remaining circumstances do not arise in this case. That is to say, (b) that the third parties have not consented to the release of their personal information; (c) that the information is not of a kind that is available to the general public; (d) that 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) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. 

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 do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act.

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court inThe 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. 

Furthermore, McDermott J., in his December 2016 judgment in the case ofF.P. and the Information Commissioner[2014 No. 114 MCA] ("the F.P. case"),  said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the -�public interest-� in granting access is not to be determined on the basis of the appellant-�s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.-� 

It follows from the above that I cannot take into account any private interests that the applicant may have in the grant of access to the withheld information. Furthermore, it is clear from McDermott J.'s comments, that any argument the applicant may make to the effect that her dissatisfaction with TUSLA's actions weighs in favour of granting access to the records, is not relevant to my consideration of the public interest. I should also make it clear that I have no remit to consider, or make findings on, the adequacy of the actions of any FOI body. 

The FOI Act recognises a public interest in ensuring the openness and accountability regarding how FOI bodies perform their functions. In the case at hand, there is a public interest in establishing that TUSLA carried out its functions in dealing with the applicant in a way that was consistent with the principles of natural and constitutional justice. I consider this public interest to be entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It has been served to served to some extent by the records and parts of records granted to date. However, I am not satisfied that it would be significantly furthered by directing that access be granted to the remaining withheld information. 

On the other hand, both 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). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. Given the context in which the records in this case were created, and the sensitive nature of the withheld personal information, I am satisfied that the grant of access to the records would significantly breach the rights to privacy of the various third parties whose personal information is at issue. 

Having considered the weight of the competing public interests, I find that the public interest in favour of granting access to the withheld information does not outweigh 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 TUSLA's application of section 41 to some of the records. 

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 under sections 15(1)(a), 15(2) 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. 

Elizabeth Dolan
Senior Investigator