Whether TUSLA was justified in refusing access to a paternity test undertaken by the applicant under section 15 (1)(a) of the FOI Act on the ground that the record sought cannot be found

18 July 2019

Background

In a request dated 14 November 2018, the applicant sought access to a copy of the results of a paternity test she had undertaken in 2001 when she was in foster care. On 28 November 2018 TUSLA issued a decision in which it refused the applicant’s request under section 15 (1)(a) on the grounds that the record could not be located.

The applicant sought an internal review of that decision on 15 December 2018. TUSLA failed to issue an internal review decision within the statutory time frame. It issued its effective position to the applicant on 21 February 2019 in which it affirmed its original decision. On 10 April 2019 the applicant sought a review by this Office of TUSLA’s decision.

During the course of the review TUSLA provided this Office with details of the searches it had undertaken in an effort to locate the record sought by the applicant. By email dated 13 June 2019 Ms Hannon of this Office provided the applicant with those details and informed her of her view that TUSLA was justified in refusing the request under section 15 (1)(a). No reply was received by this Office.

I have decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and TUSLA as set out above and to communications between this Office and both TUSLA and the applicant on the matter.

Scope of the Review

This review is concerned with whether TUSLA was justified in refusing the applicant’s request for a copy of the results of a paternity test she undertook in 2001 under section 15 (1)(a) of the FOI Act on the grounds that the record sought cannot be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its 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. 

As I have outlined above, Ms Hannon provided the applicant with details of the searches TUSLA stated it conducted on foot of the request that is the subject of this review. Therefore, while I do not propose to repeat the details in full here, I confirm that I have had regard to them for the purpose of this review. 

In summary, TUSLA stated that both the relevant Social Work Office and Fostering Resource Unit were consulted. It said the Fostering Resource Unit undertook both manual and electronic searches and relevant individuals were consulted. It retrieved the relevant foster carer file from storage. However, the record in question was not located nor was there any mention of a paternity test. It is notable that TUSLA advised it would be highly unlikely that a paternity test would be located on a foster carer file.   

TUSLA stated the Social Work Office conducted both electronic and manual searches.  It said it checked its database and located the relevant family file. However, the record was not located on this file. It said no individual file was located in the applicant’s name. It said files are not destroyed. TUSLA added that the relevant social worker was consulted who recalled the test having been completed and that it was the GP at the time who sent it off for processing. She was unaware of the GP’s identity.

The role of this Office is confined to determining whether TUSLA has conducted all reasonable searches. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are simply lost or cannot be found. Furthermore, this Office can find that a public body has conducted reasonable searches even where records are known to exist but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records.

The position of TUSLA is that it has taken all reasonable steps to locate the record in question. TUSLA have confirmed that the paternity test was undertaken, as such it is quite unfortunate that TUSLA cannot now locate the results. However, the question I must consider is whether TUSLA has taken all reasonable steps to locate the record in question. Having considered the details of the searches undertaken, I am satisfied it has.   

I find therefore, that TUSLA was justified in refusing the applicant access to the results of a paternity test undertaken on the grounds that it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TUSLA to refuse the applicant's request for a paternity test undertaken in 2001 under section 15 (1)(a) on the ground that the record sought cannot be found. 

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.

Stephen Rafferty
Senior Investigator