Whether TUSLA was justified in refusing to grant access to certain information relating to the applicant under sections 35 and 37 of the FOI Act

26 September 2019

Background

The applicant in this case was placed in foster care in the 1990s. On 1 October 2018 he submitted a request to TUSLA for all records relating to himself and his time in care. On 12 November 2018 TUSLA issued a decision wherein it identified 1046 pages of records, across three files, as falling within the scope of the applicant's request. It provided access in full to 49 pages of records and access in part to 103 pages of records. It refused access to 894 pages of records based on a variety of exemptions.

The applicant sought an internal review of that decision. TUSLA failed to issue an internal review decision within the statutory time-frame and on 7 January 2019 the applicant sought a review by this Office of TUSLA's refusal to release all relevant records.

Following engagements with this Office, TUSLA conducted a late internal review and issued its decision to the applicant on 10 January 2018. It granted partial access to pages 336-339 of file 3 with the redaction of certain information under section 37. While it affirmed the original decision in respect of the remaining records at issue, it relied solely on the exemptions set out in sections 37(1) and 35(1) as a basis for withholding the relevant records in whole or in part. On 25 January 2019, the applicant informed this Office that he remained dissatisfied with TUSLA's response and wished the review to proceed.

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to TUSLA's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and TUSLA on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

Pages 39-45 of File 3 relate to internal TUSLA training courses and internal staffing matters.  Having reviewed the relevant records I am satisfied that they do not fall within the scope of the applicant's request. As such I consider them outside the scope of the current review and do not consider it necessary to examine them further.  

This review is therefore solely concerned with solely whether TUSLA was justified in refusing to grant access to the remainder of the relevant records it identified as coming within the scope of the applicant's request under sections 35 and 37 of the FOI Act.

Preliminary Issues

There are a number of preliminary comments I wish to make before I address the substantive issues arising.

First, while I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the description I can give of the records at issue and of the reasons for my decision are somewhat limited in this case.

Secondly, section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Finally, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

Analysis and Findings

The relevant records in this case comprise of family files relating to the foster care arrangements for the applicant and a number of his siblings. TUSLA have indicated that this conforms to the practice at the time whereby family files, as opposed to individual files, were created where more than one child was involved with its services.  As well as containing sensitive personal information about the applicant, it also contains substantial sensitive personal information relating to his siblings, parents, and, indeed, to third parties. The records at issue comprise records relating to the applicant's family circumstances, records relating to the placing of the applicant and various siblings into foster care arrangements, medical records relating to the applicant and his siblings as well as administrative records relating to the foster care arrangements for the applicant and his siblings. 

The applicant, at both the internal review stage and in his application for review to this Office, has made specific reference to pages 92-93 and 143-44 of File 3 which relate to an allegation of sexual abuse.  The applicant has indicated that as these records have been part-granted to him, he is precluded from fully determining the actions taken by TUSLA following this allegation.  The applicant has further indicated that prior to considering the possibility of making a formal report in relation to this allegation, he wishes to get further clarity on the matter and how it was dealt with at the time. 

The Agency argues that the records withheld are exempt from release under sections 35 and 37 of the FOI Act. As it has relied on section 37 to refuse access to the majority of the records I will address that exemption first.

Section 37

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

The records concerned are social work files, which by their very nature contain sensitive personal information about the applicant, his siblings, his parents and various other third parties. TUSLA has provided access to some of the records and part-granted access to further records. In addition it has refused access to a substantial portion of the records. While I believe I am prohibited by section 25(3) from giving a more detailed description of the contents of the relevant records, I am satisfied that, with the exception of the specific records dealt with below, the records to which access has refused, either in whole or in part, contain both personal information relating solely to parties other than the applicant and personal information relating to the applicant that is inextricably linked with personal information relating to one or more third parties, i.e. joint personal information. The nature of many of the records at issue means that the applicant's personal information is often intertwined with third parties' personal information to such an extent that it would be impossible to separate it out so that his information alone could be released. I find, therefore, that section 37(1) of the Act applies to most of the relevant records. This includes the records which TUSLA have withheld under section 35.

However, while it will be of no benefit to the applicant given the nature of the information in question, I am also satisfied that a small amount of information was wrongly withheld on the basis of section 37. Page 179 of File 1 is a compliment slip from the Office of the Register General which contains no personal information. Furthermore, page 231 of File 1 is a letter to the Office of the Register General in which the name of an official is redacted. Bearing in mind the definition of personal information outlined above and in particular Paragraph I of section 2, I am satisfied that the withheld information is not personal information. I therefore find that TUSLA was not justified in refusing access to these parts of the records and direct the relevant information to be released to the applicant. 

With regard to the specific records highlighted by the applicant in his application for review, I have carefully examined pages 92-93 and 143-44 of File 3 and I am satisfied that the information redacted from these records comprises personal information relating to third parties and personal information relating to the applicant that is inextricably linked with personal information relating to one or more third parties, i.e. joint personal information, and that section 37 applies. I am therefore satisfied that TUSLA was justified in its decision to refuse access to parts of these records. 

Having found that section 37(1) applies, I must go on to consider if any of the additional elements of section 37 serve to disapply that exemption.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the third parties concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), 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 applicant, in his request for internal review, stated that he is seeking the records at issue as he wishes to gain greater clarity on his upbringing.  In particular the applicant has indicated that some of the records relate to an allegation of sexual abuse and he is seeking these records in order to determine whether the matter was handled correctly by TUSLA and also to allow him to establish whether further alleged abuse could have been prevented. 

The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. Indeed, an FOI body, in performing any function under the Act, must have regard to, among other things, the need to achieve greater openness in the activities of public bodies, to promote adherence by them to the principle of transparency in government and public affairs and to strengthen the accountability of decision making in public bodies (section 11(3) refers).

On the other hand, the Act also recognises the public interest in the protection of the right to privacy. This is evident both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy 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, therefore, is whether the public interest in enhancing the transparency and accountability of TUSLA outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties concerned. In relation to the information contained in the records that I have found to be personal information relating solely to third parties, I am satisfied that the public interest in granting access to such information does not, on balance, outweigh the privacy rights of the third parties concerned.

In relation to the information contained in the records that I have found to be joint personal information relating to the applicant and other third parties, I must have regard to the fact that the disclosure of the information to the applicant would also involve the disclosure of personal information relating to the third parties in question. This Office has acknowledged in previous decisions that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. In this case, there is a public interest in revealing information that would shed light on whether TUSLA carried out its functions in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy.

On the other hand, it is important to note that the release of records under FOI is, in effect, regarded as release to the world at large as the Act places no restriction on the uses to which records released under FOI may be put.

The information which has been redacted from the records at issue in this case is of a private and personal nature. While there is a public interest in ensuring openness and transparency in the manner in which TUSLA performs its functions, I am of the opinion that this has been met to some degree by the partial release of the records at issue. Having carefully considered the matter, I consider that the public interest in the release of the redacted information in this instance does not outweigh, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply and that TUSLA was justified in refusing access to the relevant records under section 37(1).

In conclusion, therefore, I find that TUSLA was justified in refusing the applicant's request for certain records under section 37(1) of the FOI Act, with the exception of parts of two records as outlined above.  As I have also found section 37 to apply to the records which TUSLA withheld on the basis of section 35, I do not deem it necessary to consider the applicability of section 35 to those records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of TUSLA in this case.  I direct release of the following records:

• Page 179 of File 1;
• Page 231 of File 1, to include the name of the official in the Head Registration Office.

I find that TUSLA was justified in refusing access to the remaining information at issue under section 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 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.

 

 

 

 

Stephen Rafferty

Senior Investigator