Whether TUSLA was justified in its decision to refuse the applicant's request for access to a letter sent to TUSLA relating to the care and welfare of his children.

09/10/2018

Background

On 29 January 2018, the applicant sought a copy of a letter sent to TUSLA relating to the upkeep of his children. On 13 March 2018 TUSLA refused the request under section 35(1)(a) of the FOI Act. On 30 March 2018, the applicant sought an internal review of that decision, following which TUSLA affirmed its decision to refuse the request, citing sections 35(1)(a) and 42(m)(i). The applicant sought a review of that decision by this Office on 15 June 2018.

When accepting the application for review, this Office invited both parties to make a submission on the matter. While TUSLA provided a submission, the applicant did not do so. However, I note that the applicant set out his views on the matter in his application for review to this Office. In conducting this review, I have regard to the correspondence between TUSLA and the applicant as outlined above and to correspondence between this Office and both TUSLA and the applicant on the matter. I have also had regard to the content of the record at issue.

Scope of Review

This review is concerned solely with whether TUSLA was justified in its decision to refuse access to the letter sought by the applicant under sections 35(1)(a) and 42(m)(i) of the FOI Act.

Analysis and Findings

As section 42 serves to restrict the applicability of the FOI Act in certain circumstances, I believe it appropriate to consider section 42(m)(i) first, before proceeding to consider section 35, if necessary.

Section 42(m)(i)
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 provided in confidence, while the third is that the information must relate to the enforcement or administration of the law.

First Requirement

The record at issue comprises an anonymous letter sent to TUSLA relating to the care and welfare of the applicant's children. While the letter was sent anonymously, I am satisfied, having examined its contents, that its disclosure could reasonably be expected to reveal, or lead to the revelation of, the identity of the author(s). I find, therefore, that the first requirement is met.

Second Requirement 

The second requirement is that the provider of information must have provided that information in confidence. In its submission to this Office, TUSLA stated that it accepts information relating to the care and welfare of children on the basis that it is provided 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. I accept that 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.

In his application for review, the applicant stated his belief that the allegations concerning the welfare of his children were made maliciously and recklessly and that the person(s) making the report committed an offence under section 5 of the Protection for Persons Reporting Child Abuse Act 1998 and that they should not, therefore, be granted anonymity. He also argued that TUSLA's actions following receipt of the letter did not suggest that it had treated that letter as having been given in good faith.

I accept that TUSLA acts upon every report such as the type at issue in this case in good faith. Indeed, when one considers the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken, the difficulty for TUSLA in handling such reports in any other manner become apparent. I accept that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public and that TUSLA relies upon such information to carry out its functions. In the present case I give significant weight to safeguarding the inherent importance in protecting the free flow of information to TUSLA and I accept that the information was given in confidence in this case. 

I do not accept that the fact that the false reporting of child abuse is a criminal offence under section 5 of the Protection for Persons Reporting Child Abuse Act 1998 means that TUSLA should resile from its practice of treating reports such as the type at issue in this case as having been made in confidence and in good faith. Indeed, if TUSLA had concerns about the malicious nature of a complaint, it would be open to it to pursue the matter while continuing to protect the free flow of information to allow it to carry out its functions.

Accordingly, I find that the information contained in the letter sought was provided in confidence in this case and that the second requirement of section 42(m)(i) has been met.  

Third Requirement

The third requirement is that the information provided 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. Section 3(2) of the Act provides that TUSLA -�shall take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area-�. Accordingly, I accept that the information provided relates to the enforcement or administration of the law and that the third requirement has been met.

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 refusing to grant access to the record sought.

In light of this finding it is not necessary for me to consider whether section 35(1)(a) of the Act also applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TUSLA to refuse access to a letter it received relating to the care and welfare of the applicant's children under section 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