Whether TUSLA was justified in its decision to withhold certain information from its file relating to a referral made in respect of the applicant's son.

15 August 2018

Background

On 10 January 2017, the applicant made a request to TUSLA for any information held by it concerning her son including all letters relating to any complaints or investigations relating to him. On 30 June 2017, TUSLA issued a decision outside the statutory time frame in which it decided to grant partial access to the file it held as a result of a referral made in respect of the applicant's son. It redacted some information under sections 35 and 37 of the FOI Act to protect the identity of the complainant, information that was given in confidence, and personal information of third parties.

On 27 February 2018, the applicant sought an internal review of TUSLA's decision. TUSLA issued an internal review decision to the applicant by letter dated 3 April 2018 in which it varied its original decision. It granted full access to five of the 12 records it identified as coming within the scope of the applicant's request, partial access to six records and it refused access to one record, citing sections 35, 37 and 42 (m)(i) of the FOI Act. On 3 May 2018, the applicant sought a review by this Office of TUSLA's decision.

I have decided to bring this case to a close by way of a formal, binding decision. In carrying out this review, I have had regard to the correspondence between TUSLA and the applicant and to the communications between this Office and both the applicant and TUSLA on the matter. I have also had regard to the contents of the withheld records provided by TUSLA to this Office for the purpose of the review.

Scope of Review

This review is concerned solely with whether TUSLA was justified in its decision to withhold certain information from its file relating to a referral made in respect of the applicant's son.

Analysis and Findings

TUSLA relied on sections 35, 37 and 42 (m)(i) to redact information from six records and to refuse access to one record in its entirety. As section 42 serves to restrict the applicability of the FOI Act in certain circumstances, I have considered this provision first.

Identity of the Complainant

Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given in confidence, while the third is that the information must relate to the enforcement or administration of the law.

First Requirement

Having examined the relevant records, I am satisfied that the disclosure of the majority of the information withheld could be reasonably be expected to lead to the revelation of the identity of the person who provided information to TUSLA relating to the applicant's son. I find, therefore, that the first requirement is met in respect of these redactions. A small amount of the information that has been redacted relates to third parties, the release of which would not lead to the revelation of the identity of the provider of the information. I will consider this information separately below under section 37(1).

Second Requirement

The second requirement for section 42(m)(i) to apply is that the provider of the information must have provided that information in confidence. It is arguable that if people who wished to provide information to TUSLA in cases where they have concerns about the level or nature of care being provided for children were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. The records in this case contain a clear statement that the complainant provided the information in confidence.

In its submission to this Office, TUSLA stated it is its practice to treat the identities of complainants as confidential as without an assurance or understanding that information being provided is provided in confidence, such persons may be reluctant to provide this type of information in the future which could result in vulnerable children being left at risk of neglect or harm.

This Office gives significant weight to safeguarding the flow of information to FOI bodies and accepts that the disclosure of the identity of complainants, even where there is a possibility that the complaint was maliciously motivated, could prejudice the flow of information from the public. This Office further accepts that in many situations the FOI body acts on the information provided in good faith. Indeed, the Commissioner has previously expressed the view that when the situation of the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken is considered, the difficulty for the FOI body in handling such information in any other manner becomes apparent. In the present case I give significant weight to safeguarding the inherent importance in protecting the free flow of information to TULSA and I accept its position that the information was given in confidence in this case, notwithstanding the fact that the allegations were subsequently regarded as unfounded.

Having regard to the nature of the information at issue and to TUSLA's position on the matter, I accept that the information was given in confidence in this case and I find that the second requirement has been met. 

Third Requirement

The third requirement is that the information provided to the FOI body relates to the enforcement or administration of the law.

The Child Care Act 1991 imposes a statutory duty on TUSLA to promote the welfare of children who are not receiving adequate care and protection. If it is found that a child is not receiving adequate care and protection, TUSLA has an obligation to take appropriate action to promote the welfare of the child. Accordingly, I accept that the information was given in relation to the enforcement or administration of the law, notwithstanding the fact that TUSLA subsequently concluded that the informant's concerns appeared to be unfounded.

Having found that each of the three requirements are met, I find that section 42 (m)(i) of the FOI Act applies and that TUSLA was justified in redacting all information whose disclosure could lead to the revelation of the supplier of information to TUSLA concerning the applicant's son.

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. Furthermore, section 37(7) provides that a public body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information. 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 remaining information at issue to which section 42(m)(i) does not, in my view, apply comprises information about individuals other than the applicant or her son or information that could reasonably be described as joint personal information relating to those individuals and the applicant's son. The information withheld includes names, addresses and telephone numbers relating to third parties. I am satisfied that the release of that information would involve the disclosure of personal information relating to third parties and that section 37(1) applies.

Section 37 also contains a number of provisions that serve to disapply section 37(1). Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. Section 37(5) provides that access to the personal information of a third party may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates.

It has not been argued that releasing the records would benefit the person to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, 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. 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.

In my view, the public interest in enhancing the accountability and transparency of TUSLA has been served to a significant extent by the release of the vast majority of the information held on the relevant file. The question I must consider is whether the public interest in further enhancing that transparency and accountability is sufficiently strong to outweigh, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates. In my view, it is not. I find, therefore, that TUSLA was justified in withholding the personal information at issue under section 37(1) of the FOI Act.

In conclusion therefore, I find that TUSLA was justified in its decision to withhold certain information from its file relating to a referral made in respect of the applicant's son under sections 37(1) and 42(m)(i). In light of this finding, I do not consider it necessary to consider the applicability of section 35 to the information at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TUSLA to withhold certain information from its file relating to a referral made in respect of the applicant's son under sections 37(1) and 42(m)(i).

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