Whether TUSLA was justified in refusing access to records relating to the applicant and other individuals, under sections 31(1)(a), 35, 37 and 41 of the FOI Act

20 November 2019

Background

The applicant acted through a representative in this matter. On 6 June 2018, the applicant made an FOI request to TUSLA for her care/adoption file in a particular institution. On 3 September 2018, TUSLA issued a decision, in which it granted access to some information and refused access to the remaining records on the grounds that they were exempt under sections 6, 31(1)(a), 35 and 37 of the FOI Act. On 23 September 2018, the applicant applied for an internal review decision. On 23 October 2018, TUSLA issued an internal review decision, in which it affirmed its original decision. On 5 December 2018, the applicant applied to this Office for a review of TUSLA's decision.

In conducting my review, I have had regard to the correspondence between TUSLA and the applicant as described above, as well to correspondence between this Office and both TUSLA and the Adoption Authority of Ireland (AAI).  I have also had regard to the contents of the records at issue and the provisions of the FOI Act and the Adoption Act 2010. 

Scope of the Review

During the review process, by letter dated 28 March 2019, TUSLA released the following records in full: Records 68, 69, 70, 76. By letter dated 12 April 2019, it then released the following records in part: Records 17, 21, 27, 30, 43 and 114. The information which has been released now falls outside the scope of my review. Furthermore, TUSLA issued an updated schedule of records, in which it also claimed section 41(1) of the FOI Act.

Accordingly, this review is concerned with whether TUSLA was justified in refusing access to the records which remain withheld, under sections 31(1)(a), 35, 37 and 41 of the FOI Act. The applicant queried whether there were missing records and I therefore also consider section 15(1)(a). The applicant’s submissions cover a number of issues relating to the history of her adoption and the handling of her adoption records. I have a great deal of sympathy for the applicant. However, I must emphasise that my role is confined to determining the right of access to records held and whether TUSLA’s decision was justified under the FOI Act.

Finally, TUSLA had initially claimed that certain records were exempt under section 6 of the FOI Act, on the basis that they were records of the AAI. Following correspondence with this Office, TUSLA accepted that section 6 did not apply and claimed sections 37 and/or 41 of the FOI Act over the relevant records instead.

Preliminary Matters

First and foremost, I would like to apologise to the applicant for the length of time which this review has taken to complete. Given the legal issues involved, I considered it appropriate to consult the AAI in this case and ensure that we understood its position fully. This consultation process and the subsequent consideration of legal issues meant that the review took longer than I would have liked. I am grateful to the AAI for its cooperation and to the applicant for her patience.

Secondly, 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. When this Office made the applicant aware that TUSLA now relied on section 41(1), the applicant queried why TUSLA was claiming an exemption to which it had not referred in its original decision. That is a fair question. Nonetheless, as TUSLA has raised it, I must deal with it, particularly as it is a provision which restricts the applicability of the FOI Act.

Thirdly, 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.

Fourthly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicant's reasons insofar as they might be construed as a public interest argument.

Finally, in her application for review, the applicant complains about TUSLA's handling of her FOI request and points to failures to comply with statutory time-frames and to number records. FOI bodies are required to comply with the deadlines provided for in the FOI Act and I urge them to put the necessary resources in place to ensure that they are in a position to do this. I note that TUSLA did not provide an explanation for issuing decisions outside the statutory time-frames. I am glad to say that this Office is in ongoing discussions with TUSLA and other FOI bodies about improving the handling of FOI requests and quality of decision-making.

Analysis and Findings

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

In her request for an internal review, the applicant said: "there is content that was clearly in my [name of the institution] file and which is missing from TUSLA's response to my FOI request". In submissions to this Office, the applicant refers to a report prepared by the institution concerned in 2009. 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.

During the review process, the Investigator asked TUSLA questions about the steps which it had taken to search for records and the 2009 report referred to by the applicant. In response, TUSLA set out the position in some detail, which I summarise here. Records from the institution concerned were transferred to TUSLA in May 2016. They are held in electronic format on TUSLA's record management system used for adoption and older fostering records. The original paper file regarding the applicant was recalled and reviewed on 7 March 2019. On the same date, TUSLA asked the acting principal social worker of adoption services to clarify that there were no other documents. He confirmed that he had provided a hard copy of the file with the information received from the institution concerned in respect of this case. In addition, TUSLA says that cross-referencing the electronic file with the original can determine if any pages have been omitted and this cross-check was completed.

TUSLA says that there is no report in the applicant's original file from 2009 and that the only report is from 2014, which is contained in the records at Pages 135-139 and 140-144. TUSLA notes that Page 11 (which dates from 2009) refers to a report from 2009 being posted to the applicant via registered mail, but says that there is not a copy of this report on the file.

Having regard to the steps outlined above, I am satisfied that TUSLA has taken reasonable steps to search for records which it holds within the scope of the applicant's FOI request. I find that TUSLA was justified in refusing access to further records under section 15(1)(a) of the FOI Act. 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 41 - Enactments relating to non-disclosure of records

TUSLA claims section 41 of the FOI Act over Records 17, 20, 21, 27, 30, 43, 114, 116-118, 125-126 and 132-133. This Office conducted a separate review on foot of an entirely unrelated FOI request which also concerns records of the AAI held by TUSLA. I considered it appropriate to progress both reviews simultaneously and to obtain the AAI’s views on the operation of the Adoption Act 2010 as it relates to section 41 of the FOI Act for the purpose of dealing with both reviews. I set out and consider the AAI’s submissions below.

Freedom of Information Act 1997

It is worth noting the relevant legislative history at this juncture. Section 161 of the Adoption Act 2010 amended the Freedom of Information Act 1997 to introduce a new provision - section 46(1)(dd) - which provided that the Freedom of Information Act 1997 did not apply to:

“a record held or created under the relevant statutory provisions by the Adoption Authority or an employee of the Authority, relating to or arising from the making of an adoption order or the recognition of an intercountry adoption effected outside the State, within the meaning of the Adoption Act 2010, (other than a record concerning any other functions of the Authority or the general administration of the Authority),”.

This provision does not have an equivalent in the Freedom of Information Act 2014 (FOI Act). Section 6 of the FOI Act provides that the AAI is a partially-included agency, but that provision is not relevant in this case since the applicant made her FOI request to TUSLA and as noted above, TUSLA accepted that section 6 does not apply. It is fair to say that the FOI Act does not restrict its application to adoption records in the same way in which the Freedom of Information Act 1997 did. In reaching my conclusions in this case, I am cognisant of this fact.

The FOI Act

Section 41(1)(a) of the FOI Act provides that a head shall refuse to grant an FOI request if the disclosure of the record is prohibited by law of the European Union or by an enactment which is not listed in Schedule 3 to the FOI Act. In effect, the non-disclosure provision overrides any right of access under FOI, unless that particular provision is specified in Schedule 3. I take the view that in order for section 41(1)(a) to apply, a provision must exist that explicitly prohibits the release of the records, that is clear in its meaning and effect, and that can be interpreted only as prohibiting disclosure of the information in question. I am also of the view that the objective of section 41(1) - subject to the exceptions specified in Schedule 3 - is to protect the actual information, whether it is held by the body specified in the original enactment or by some other FOI body.

Section 41(1)(b) of the FOI Act applies where non-disclosure is authorised (as distinct from disclosure being prohibited). It applies where the non-disclosure is authorised by an enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) in certain circumstances and the case is one in which the FOI body would refuse to disclose the record under that enactment. Section 41(1)(b) requires that non-disclosure is authorised; an absence of an obligation to release is not sufficient.

The Adoption Act 2010

Section 86 of the Adoption Act 2010 provides:

“(1) An tArd-Chláraitheoir shall keep an index to make traceable the connection between each entry in the Adopted Children Register and the corresponding entry in the register of births.

(2) Notwithstanding section 85, the index kept under subsection (1) shall not be open to public inspection, and no information from that index shall be given to any person except by order of a court or of the Authority.”

Section 88 of the Adoption Act 2010 provides:

“A court shall not make an order—

(a) referred to in section 86 (2),

(b) for the discovery, inspection, production or copying of any book, document or record of the Authority (or of any extracts from any of them), or otherwise in relation to the giving or obtaining of information from any of them,

unless the court is satisfied that it is in the best interests of any child concerned to make the order.”

Neither section 86 nor 88 is an exception specified in Schedule 3 to the FOI Act.

Submissions

The AAI submits that the relevant provisions are section 88 of the Adoption Act 2010 and section 41(1)(a) of the FOI Act. It says that these provisions, read together with the relevant case-law, mean that the law regarding the privacy of adoption records shall apply irrespective of whether the record is held by the AAI or another body and a Court order would appear to be required to release the records at issue. It submits that the Courts have been clear that the prohibition contained in section 88 of the Adoption Acts relating to the release of adoption records is not restricted solely to the information in the index referred to in section 86, but is sufficiently broad to capture all records held by the AAI.

Analysis and Findings

I accept that if a prohibition exists under sections 86 and/or 88 of the Adoption Act 2010, it protects the information concerned irrespective of which FOI body holds it. However, in my view, section 88 refers back to section 86 and is directed at the Court. It outlines the type of circumstances in which the Court might be asked to make an order to release information from the index under section 86. This Office has established, with the assistance of the General Register Office, what that index contains. It does not capture the particular information under review in this case. Accordingly, section 86 of the Adoption Act does not apply to the records and I do not need to consider it further.

The AAI points to case-law which, it says, supports a broader interpretation of section 88(b) and its predecessor (section 8 of the Adoption Act 1976). As noted above, in the first instance, I believe that section 88 reads back to section 86. Nonetheless, I acknowledge that there is an alternative reading of section 88(b) in light of its predecessor, which deals more generally with the kinds of court orders which can be made. However, this does not alter my view that section 88 sets out the circumstances in which the Court can make an order under the Adoption Act 2010. I do not believe that it explicitly prohibits the release of the records, is clear in its meaning and effect and can be interpreted only as prohibiting disclosure of the records, for the purposes of section 41(1)(a) of the FOI Act. Neither do I consider that it is an enactment which authorises the AAI not to release the records, for the purposes of section 41(1)(b) of the FOI Act.

I should add that I believe that giving such a broad reading to section 88(b) would achieve a similar objective to that of section 46(1)(dd) of the Freedom of Information Act 1997, which was not replaced in the FOI Act 2014.

In the circumstances, I am not satisfied that section 41(1)(a) or (b) applies to the records numbered above. Accordingly, I find that TUSLA was not justified in refusing access to them under section 41 of the FOI Act. I proceed to consider them under section 37 of the FOI Act below.

Section 31 - Legal Professional Privilege

TUSLA claims section 31(1)(a) of the FOI Act over Records 62-64. I consider Record 62 under section 37 below. Section 31(1)(a) provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Having examined Records 63-64, I am satisfied that they constitute confidential communications made between a client (the institution concerned) and their professional legal adviser for the purpose of obtaining and/or giving legal advice. I therefore find that TUSLA was justified in refusing access to these records under section 31(1)(a) of the FOI Act.

Section 37 - Personal information

Sections 37(1) and 37(7)

TUSLA claims section 37 of the FOI Act over the remaining records. 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”, "(viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status (within the meaning of section 2(1) of the Civil Registration Act 2004) of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual", "(ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose" and “(x) information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary etc.".

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 majority of the records under review contain the following kinds of information: the names, addresses, email addresses, telephone numbers and reference numbers of various individuals other than the applicant. They also contain information about the dates of birth and death, marital status, welfare entitlements and educational and medical history of various individuals other than the applicant. Although these records are part of the applicant’s adoption file, they disclose personal information relating to individuals other than her, including but not limited to her adoptive and birth-parents. I find that section 37(1) of the FOI Act applies to the withheld parts of the following records: 3, 7-9, 20, 23, 25-26, 32, 38, 40-41, 53, 59-62, 65-67, 78, 84, 89, 93-98, 101-112, 114-115, 116-118, 120, 125-126, 132-133, 213-214. This finding is subject to other provisions of section 37, which I examine below.

However, I am not satisfied that section 37(1) applies to the withheld information in Records 17, 21, 27, 30 or 43. This comprises the AAI’s reference number and the applicant’s original birth-name. Both of these pieces of information relate to the applicant and moreover both are contained in other records disclosed to the applicant by TUSLA as part of this FOI request. Accordingly, I am not satisfied that releasing this withheld information would disclose personal information for the purposes of section 37(1). I find that section 37(1) does not apply to this information and TUSLA was not justified in refusing access to it under section 37 of the FOI Act.

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 information which I have found to be exempt under sections 37(1) above. That is to say, (a) it does not relate solely to the applicant; (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.

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.

As noted above, I am required to disregard the applicant's reasons for her FOI request. Therefore I can only take into account the purpose for which she seeks this information to the extent that she identifies a public interest. The applicant has provided a detailed personal background to her FOI request. It is not appropriate or necessary for me to outline that background here. However, I can say that the applicant seeks access to the records in connection with her own history and the identities of her birth parents. She submits that she is entitled to have full access to the information sought. While I have a great deal of sympathy for the applicant, I am bound to treat her interest as a private rather than a public interest. I must also bear in mind that release under FOI is effectively release to the world at large. I 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.

Accordingly, I find that TUSLA was justified in refusing access to the records to which I have found section 37(1) to apply, except for certain records which I will now consider under section 37(8).

Section 37(8)

Section 37(8) provides that notwithstanding section 37(1), the Minister may provide by regulations for the grant of an FOI request, where the individual to whom the record concerned is deceased and the requester is a member of a class specified in the regulations. The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, S.I. No. 218/2016 (2016 Regulations) provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

It seems to me that the applicant may be seeking certain information as the next of kin of deceased persons for the purpose of the 2016 Regulations. However, I make no finding as to the applicant’s status in relation to any persons. It is for TUSLA to establish whether these regulations apply and to apply the relevant provisions and guidance, including consideration of the public interest in the confidentiality of personal information. The records in question are Records 20, 53, 116-118, 125-126, 132-133. For clarity, I should say that these records relate to the applicant’s adoptive parents. I am satisfied that in the circumstances of this case, TUSLA should have considered the 2016 Regulations. I consider that the appropriate course of action for me is to annul TUSLA's decision on those records and direct it to undertake a fresh decision-making process, having due regard to the provisions of the 2016 Regulations and the Guidance produced by the Minister for Public Expenditure and Reform.

I should also mention that parts of the above-numbered records may contain the personal information of identifiable individuals other than the applicant and individuals to whom she may be next-of-kin. These should be considered under section 37(1) or (7) of the FOI Act, as relevant.

I am conscious of the delays to date in this matter. I will therefore direct TUSLA to make a fresh decision no later than four weeks after the appeal period has expired. This should give it the opportunity to consult the applicant about her status in the context of the 2016 Regulations in relation to the deceased persons and consider any material received. If it is necessary for the applicant to return to this Office on an application for review, I undertake to expedite any such review.

Finally, as I have found the information over which TUSLA claimed section 35 of the FOI Act to be exempt under section 37, it is not necessary for me to consider section 35.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary TUSLA's decision as follows. I affirm its decision on certain information under sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act, as outlined above. I annul its decision on the following records and direct TUSLA to make a fresh decision on them, having due regard to the provisions of the 2016 Regulations and the Minister’s Guidance: Records 20, 53, 116-118, 125-126, 132-133. I annul its decision on the following records and direct their release: Records 17, 21, 27, 30 and 43.

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by TUSLA to my decision within 20 working days of the expiration of the time for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

 

                       

Peter Tyndall

Information Commissioner