18 December 2018

Whether TUSLA was justified in deciding to refuse access to records relating to the applicants' fostering files on the grounds that the records are exempt from release under sections 15 and 37 of the FOI Act 

Background

The background to this case is a previous review by the Information Commissioner, Case 170350 (Mr and Mrs X and TUSLA). On 14 March 2017, the applicants made an FOI request to TUSLA for information relating to them in their role as foster carers. On 11 July 2017, the applicants applied to this Office for a review of TUSLA's decision in that matter. In that review, I was not satisfied that TUSLA had taken all reasonable steps to ascertain the whereabouts of the records sought. On 5 April 2018, I therefore directed TUSLA to undertake a further search for records within the scope of the applicants' FOI request and to make a fresh decision on any such records in accordance with the FOI Act. This present review application made by the applicants on 18 July 2018 is concerned with TUSLA's fresh decision on the records which it found in its subsequent searches and before this review process began.

In conducting my review, I have had regard to the correspondence between the applicant and TUSLA and to the correspondence between this Office and both parties, as well as to the contents of the withheld records that were provided to this Office by TUSLA for the purposes of this review.

Scope of the Review

The records which fall within the scope of this reviews are records contained in the "Fostering File" and the "Children in Care File". Furthermore, to resolve a doubt which has arisen about two particular records, I am including in this review the withheld information in CFA 25/17, File 8, page 124 and CFA 31/18 CIC File 2 pages 3-4. I say more on the scope of my review below, in considering section 15(1)(a) of the FOI Act.

This review is concerned with whether TUSLA was justified in refusing access to the records under sections 15(1)(a) or 37 of the FOI Act. I have adopted the numbering used by TUSLA in its schedules. 

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, TUSLA's handling of this and the previous case was extremely poor and led to a great deal of confusion. This was highly unsatisfactory; not least for the applicants, who are exercising their right to seek access to information under the FOI Act. In my view, these cases highlight serious structural problems with the way in which TUSLA handles and manages FOI requests and reviews. A senior official whom I contacted has advised that she is in the process of establishing new structures and information systems. These will include additional senior administrative support allocated to FOI applications, specialised FOI training for staff and the procurement of software systems to support file management, tracking and processing. I welcome these developments. This Office will continue to monitor TUSLA's handling of FOI requests. I should also note that the applicants notified the Investigator that they have made a complaint to the Ombudsman's Office about matters concerning TUSLA, including one of the decision-makers in this FOI process. I have no involvement in any investigation of the applicants' complaint to the Ombudsman's Office, since that Office is independent of the Information Commissioner's Office with a separate statutory remit. 

Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on TUSLA to satisfy me that its decision is justified.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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.

Fourthly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. 

Finally, with certain limited exceptions (e.g. sections 37(2) and 37(8), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

The applicants maintain that further records exist. They provided this Office with a list of additional records which they say exist. In these circumstances, it is appropriate to consider section 15(1)(a) of the FOI Act. Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found. 

On 2 October 2018, the Investigator put the applicants' list of additional records to TUSLA. She asked TUSLA questions about its record management practices and the steps which it had taken after Case 170350 to search for records within the scope of the applicant's original FOI request. In response to these questions, TUSLA undertook yet further searches, following which it found five more files and a number of email records. However, it is not this Office's function to conduct first instance or internal review decisions for FOI bodies. I am therefore not incorporating the records which TUSLA found after the review process began within this review process. The Investigator advised the applicants that it is open to them to apply for an internal review of TUSLA's decision on those records, some of which it has released to them. 

Nonetheless, in assessing whether TUSLA has now taken all reasonable steps to ascertain the whereabouts of the records sought, I will consider the steps which it has taken after Case 170350 to date. In summary, TUSLA outlined the following steps:

• The Area Manager dedicated three senior staff to oversee the retrieval of records and independently undertook computer searches of all staff and managers previously involved.
• Every service manager was instructed to personally oversee accurate case file retrieval, including verification that all related archives had been thoroughly searched.
• Both electronic files and manual case files were included in the searches.
• Electronic and manual searches included the use of multiple spellings of the applicants' surname and the surname of children who were in their care.
• Searches included checking adjacent filing cabinets.
• The searches involved senior staff who had not previously been involved and who retrieved information from staff computers, in combination with an extensive search of archives.

Given the particular chronology of events in this case and Case 170350, I directly contacted the Area Manager [X] TUSLA to record my concerns. I asked her to confirm to me in writing that TUSLA had undertaken all reasonable searches for records within the scope of the applicants' FOI request, in accordance with this Office's search guidelines. 

In response, the Area Manager apologised and said that complicating factors in this case had included the number of staff involved and the changeover of key staff (three social workers, three social work team leaders, three principal social workers). She confirmed to me in writing that "all reasonable searches for records within the scope of the applicants' FOI request in accordance with your office's search have been undertaken". 

Having regard to the steps outlined above and the assurance provided to me by the Area Manager, I am satisfied that TUSLA has now taken reasonable steps to search for records within the scope of the applicants' FOI request. I find that TUSLA is justified in refusing access to further records under section 15(1)(a) of the FOI Act.

I should note that the applicants still do not consider that TUSLA has provided them with all the records they sought. They say that although some of the most recently released records include new information, many are duplicates. They say that they have not received certain minutes of meetings regarding them and records regarding decisions affecting them. Perhaps inevitably, there appears to have been extensive duplication in the records released and some overlap in the various files. As regards the applicants' dissatisfaction with the content of the records released, this is not something that this Office can investigate, except insofar as it is relevant to the adequacy of the searches for records actually held. As noted above, my role is confined to considering whether TUSLA has taken all reasonable steps to ascertain the whereabouts of the records. I have dealt with this above. The FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found.

Section 37 - Personal information

TUSLA claims section 37 over the withheld records.

Sections 37(1) and 37(7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term -�personal information-� as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: -�(i) information relating to the educational, medical, psychiatric or psychological history of the individual-� and -�(xiv) the views or opinions of another person about the individual-�.

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

The records relate to: children who are or were in foster carer; parents and other family members of children in foster care; foster carers other than the applicants and complaints about individuals other than the applicants. They contain the names of individuals other than the applicants and information relating to the age, medical and psychological history of individuals other than the applicants, as well as views or opinions about individuals other than the applicants. Accordingly, their release would involve disclosing personal information relating to individuals other than the applicants. 

I therefore find that the records are exempt from release under section 37(1) of the FOI Act. This finding is subject to the provisions of sections 37(2) and 37(5), which I examine below. 

Section 37(2)

Section 37(2) of the FOI Act 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 to the records which I have found to be exempt under sections 37(1) above. That is to say, (a) they do not relate solely to the applicants; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I am then required to consider section 37(5) as it applies to the records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates. 

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [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.

The FOI Act itself recognises the public interest in ensuring the openness 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. 

The information which the records contain relates to the histories of children in foster care and to their welfare, as well as to family members of such children and other third parties. I consider the records to include highly sensitive information, which is extremely personal to the third parties concerned. I consider that a significant invasion of privacy would occur if the records were disclosed to the world at large, which is the effective result of releasing records under FOI. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. 

Section 37(8)

Regulations have been made by the Minister in relation to FOI requests where the requester is the parent or guardian of a child to whom the record relates. It has not been argued that the applicants are the legal guardians of the third parties and I have no reason to believe that this is the case. 

Findings

Having regard to the above, I find that TUSLA is justified in refusing access to the withheld records under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm TUSLA's decision under sections 15 and 37 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