Whether the Agency was justified in its decision to refuse access to parts of social work records concerning the applicant under section 37 of the FOI Act

31 October 2018

Background

On 27 April 2017, the applicant made an FOI request to the Agency for access to her social work case files. The Agency failed to make a decision on her request within the statutory time-limit and the applicant applied for an internal review on 11 June 2018. On 17 August 2018, the Agency issued an internal review decision partially granting the request. The Agency identified three files of social work records. It granted access to some records but it refused access to other records/parts of records on the basis of sections 31(1)(a) (legal professional privilege) and section 37 (personal information). On 23 August 2018, the applicant applied to this Office for a review of the Agency's decision.

Both the applicant and the Agency made submissions during the course of this review.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Agency, to correspondence between the Agency and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

The applicant states that before submitting her FOI request, she reviewed her social work case files with the Principal Social Worker in her area and she noted a number of letters, dating from approximately 1999 to 2000, in which staff of the former Health Board expressed concern about her living at a [named] address. The applicant states that she is interested in these records. She states that the records provided to her by the Agency are not numbered so she cannot identify these records by number. This Office wrote to the applicant and stated that based on her description, the following four records appear to be relevant:

• HSE Case Conference Report dated 17 December 1999 by a Child Care Manager - (File one page numbers 84-87);
• File Note (handwritten), dated 7 February 2000 by a Social Worker (File two page numbers 134-135);
• Letter dated 7 February 2000 from a Social Worker to a Housing Officer (File two page number 137);
• Closure/Transfer Summary (handwritten) dated 27 November 2000 from a Social Worker (File two page number 147).

The applicant helpfully confirmed in writing that she is willing to limit the scope of her request to these records. The scope of this review is therefore confined to whether the Agency was justified in its decision to refuse access to parts of the above records under section 37 of the FOI Act.

Preliminary Matters

Before I make my findings in this case, I wish to make the following points on certain issues arising in this case. 

The Act provides that a decision on an FOI request shall be made not later than 4 weeks after the receipt of an FOI request and a decision on a request for internal review shall be made within three weeks of the receipt of the request for review. In this case, the Agency did not issue a decision on the applicant's FOI request. Over one year after submitting her FOI request, the applicant requested an internal review decision. It is not clear that the Agency was in contact with the applicant in the interim. The Agency issued an internal review decision over two months later. The failures to comply with the FOI Act in this case are completely unacceptable. As this Office has previously stated, it is incumbent on FOI bodies, including Tusla, to put the resources in place in order to be able to deal with FOI requests and reviews in accordance with the statutory time limits.

The second point to note is that, under section 13(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act). 

The third point has to do with the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines a -�record-� as including -�anything that is a part or a copy-� of a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent. 

Finally, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Analysis and Findings

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information relating to an individual other than the requester. In a situation where a record, or part of a record, contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 37(7) provides for the refusal of a request for information which, if released, would result in the disclosure of personal information about other parties as well as about the requester.

For the purposes of the FOI Act, personal information is defined as 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 a public body on the understanding that it would be treated by it as confidential. Section 2 of the Act further details fourteen specific categories of information which constitute personal information, without prejudice to the generality of the foregoing definition. These categories include: (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI Body concerned relates to the individual; (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual; (xiv) the views or opinions of another person about the individual.

The applicant states that she inspected her social work files and there was very little information in the records relating to third parties. She states that she does not understand why the Agency withheld so much information from the records and she would like to have the records reviewed to see whether there is further information in the records that can be released to her.

The records at issue consist of social work case reports concerning the applicant or correspondence between social workers and others in relation to her. Having examined the records, I am satisfied that the information withheld by the Agency refers to (1) persons other than the applicant, including third parties such as the family members of the applicant (including the applicant-�s child) and (2) the applicant and those third parties. I am satisfied that none of the withheld parts of the four records contain information which is personal information relating solely to the applicant. In considering this aspect, I have taken account of section 18 of the FOI Act as referred to earlier in this decision. I note that when the applicant made her FOI request, her child was under 18 years of age. However, reviews carried out by this Office are de novo which means that they are based on the circumstances and the law at the time of the decision. At the time of this review the applicant-�s child is no longer a minor and the applicant is not generally entitled to information withheld from the records which concerns an adult individual. In light of the above, I find that the withheld parts of the records are exempt from release on the basis of section 37(1) and section 37(7) subject to the provisions of section 37(2) and section 37(5) which I examine below.

I should note here that the fact that the applicant may be aware of information in the records relating to persons other than herself is not relevant here. Release under FOI must be taken as release of records to the world at large.

Section 37(2) 
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate for this Office to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue here.

Section 37(5) the Public Interest
I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case. 

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates.

The applicant states that after reviewing her social work case file, it was clear to her that staff of the former Health Board were aware that she had made certain allegations which had been validated. She states that in her opinion, the social workers involved failed in their duty to keep her safe and secure. The applicant states that court proceedings are ongoing in relation to these matters and she requires access to the records at issue in connection with those court proceedings.

The Agency argues that the public interest in the continued receipt of sensitive information that assists in protecting children as well as protecting the privacy of individuals outweighs the public interest that would be served by release of the information at issue.

In considering the public interest test in section 37(5)(a), I must have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), available at www.oic.ie. In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, -�a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law-� must be distinguished from a private interest for the purpose of section 37(5)(a).

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the Agency carried out its child protection functions in relation to the applicant.
On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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.

The question I must consider is whether the public interest in the release of the third party personal information or joint personal information contained in the records outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties to whom the information relates. In my view, it does not.

The public interest in openness and accountability as to the manner in which the Agency carried out its functions has been served, to some extent, by the release of information contained in the records already released to the applicant. This includes information in relation to the interaction of social workers with the applicant and the views of these social workers in relation to the applicant's safety. The withheld parts of the records contain information not only relating to the applicant but also information of a private and personal nature relating to other individuals. I find that, in the circumstances of this case and having regard to the judgment of the Supreme Court in the Rotunda case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act, I hereby affirm the decision of the Agency to refuse access to the withheld parts of the records

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