Whether TUSLA was justified in its decision to refuse access to parts of the applicants' fostering file under sections 35 and 37 of the FOI Act 

15 March 2019

Background

On 10 January 2017, the applicants made an FOI request to TUSLA for access to their fostering file. TUSLA failed to make a decision on their request within the statutory time-limit. On 26 July 2018, TUSLA issued its decision. It located one file containing 348 pages from which it released 230 pages in full, 98 pages in part and refused access to 20 pages on the basis that the withheld information is exempt under sections 35 (confidential information) or 37 (personal information) of the Act. On 21 August 2018, the applicants requested an internal review of TUSLA's decision. TUSLA did not issue an internal review decision within the statutory time-limit. On 20 September 2018, the applicants applied to this Office for a review of TUSLA's decision. TUSLA issued a late internal review decision on 25 September 2018, in which it affirmed its original decision.

Both the applicants and TUSLA 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 applicants and TUSLA, to correspondence between TUSLA and this Office, to correspondence between the applicants and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

This review is concerned solely with the question of whether TUSLA was justified in its decision to refuse access to parts of the applicants' fostering file under sections 35 or 37 of the FOI Act. 

Preliminary Matters

First, the FOI Act provides that a decision on an FOI request shall be made within four weeks of receiving the FOI request and a decision on an internal review request shall be made within three weeks of receiving the internal review request. In this case, as the chronology above shows, TUSLA did not issue a decision on the applicants' FOI request until 19 months after the request was submitted. Its decision included an apology but no explanation for the delay or the failure to adhere to staturory time limits. The  internal review decision was also out of time. The failures to comply with the FOI Act in this case - especially the length of time it took to issue the initial decision - 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). 

Thirdly, 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. 

Fourthly, Regulations have been made by the Minister in relation to FOI requests where the requester is the parent or guardian of a  minor child to whom the record relates. The records in this case contain references to the applicants' children and children for whom they provided respite care. However, the applicants made their FOI request when  their children  had reached 18 years of age. It has not been argued that the applicants are the legal guardians of the children for whom respite care was provided so I will not consider this further. 

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
TUSLA claims that all of the withheld information is exempt under section 37 of the Act. It also claims that certain withheld information is exempt under section 35 of the Act. I believe that it is appropriate to consider section 37 of the Act first.

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; (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. 

Furthermore, section 37(7) provides for the mandatory refusal of a request where access to the record  would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, (joint personal information).  The records include information relating to the applicants, their children, children in respite foster care, extended family members, referees and other third parties. The fact that the applicants may be aware of much of the information in the records relating to persons other than themselves is not relevant here. 

I am satisfied that the withheld information is about identifiable individuals other than the applicants and that it is held on the understanding that it would be treated as confidential. 

In theory, one could extract certain words or phrases from these records which relate solely to the applicants. However, those parts appear in the context of other information which relates to third parties. Having regard to section 18 of the FOI Act, I conclude that to release such versions of the records would be misleading. In addition,  I consider that even if names were to be redacted, the individuals would be identifiable from the content of the records. 

I find that the withheld information is exempt from release under section 37(1) and/or section 37(7) of the FOI Act subject to sections 37(2) and 37(5) which I consider below. 

Section 37(2) 
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply.  I am satisfied that, (a) the information contained in the records does not relate solely to the applicants; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) 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) 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) - 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.

It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.
In relation to the issue of the public interest, it is important to have 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] 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 a 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 applicants say that TUSLA refused their application to become foster carers despite the fact that they have considerable experience of providing respite foster care. They say they were informed by TUSLA that it had received a negative reference but it could not explore the issues raised with them as the reference is held on the understanding that it would be treated as confidential. The applicants say that they do not know what was said about them and whether it was accurate. They argue that because they were not provided with the negative reference, it was impossible for them to address the concerns raised.

In this case, I accept that there is a public interest in openness and accountability in relation to the manner in which TUSLA carries out its functions, including how it deals with foster care applications. There is also a public interest in members of the public knowing that information held about them by public bodies is accurate. On the other hand, there is a public interest in members of the public engaging with TUSLA being able to communicate frankly and in confidence in relation to personal or sensitive matters. 
 
I acknowledge that the applicants are very anxious to have access to all of the information; however, the fact that TUSLA has already released some relevant information and explanation goes some way towards serving the public interest in accountability around how fostering applications are considered. 

It is important to note here that records released under FOI are potentially released to the world at large with the result that the content cannot be restricted to the applicants. 

Although the background to the case which gave rise to the litigation was very different to this, the Court of Appeal recently upheld  a decision of the High Court and the Commissioner's approach to the public interest balancing test in relation to personal information. In its judgment of 30 January 2019 in  FP v. The Information Commissioner[2019] IECA19  the Court said that the fact that access to particular records would be consistent with openness and transparency or serve other interests identified by an applicant does not transform a private interest into a public interest. 

It seems to me that in this case it would not be appropriate for me to direct the release of the third party personal information on the basis of a private interest that the applicants have in the release of the records. On balance, I find that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the third parties should be upheld. I find that TUSLA was justified in its refusal to grant access to the parts of the records withheld under section 37. 

Given my findings under section 37 of the FOI Act, there is no need for me to consider the section 35(1)(a) exemption in this review. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act, I hereby affirm the decision of the Agency in relation to records withheld in full or in part under section 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