Whether TUSLA was justified in refusing access to parts of records covered by the applicant’s request for her employment records

 

31 October 2019

 

Background

 
The applicant’s FOI request to TUSLA of 4 February 2019 sought access to records relating to her employment, whether directly with TUSLA or through recruitment agencies (including a particular named agency), from 6 August 2018. TUSLA’s decision of 20 March 2019 fully released some of the records covered by her request and partially released the rest. In the latter respect, it relied on sections 37(1) (personal information) and 37(7) (joint personal information) of the FOI Act. The applicant sought an internal review on 17 April 2019. TUSLA’s internal review decision of 13 May 2019 affirmed its decision. On 31 July 2019, the applicant applied to this Office for a review of TUSLA’s decision.
 
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, TUSLA and the applicant. I have also examined the records at issue and had regard to the provisions of the FOI Act.
 
 

Scope of the Review

The scope of the review is confined to whether TUSLA’s decision was justified under the provisions of the FOI Act. 
 
 

Findings

At the outset, it should be noted that section 13(4) of the FOI Act provides that any reason that a requester gives for his or her request shall be disregarded. Furthermore, when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large. This is because the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. 
 
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). As I have noted above, TUSLA has granted partial access to some records by redacting parts of those records. However, insofar as the Commissioner's position on granting partial access to records is concerned, he takes 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.
 
Section 37 - personal information
Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. In a detailed and comprehensive decision accompanied by a schedule identifying each page of the hundreds of records held on HR and other files, TUSLA explained why it relied on sections 37(1) and 37(7) of the FOI Act to withhold certain parts of the records. 
 
Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. This means that I am somewhat limited in the level of detail I can give in describing the withheld excerpts of the records. However, I am satisfied that I am not in breach of section 25(3) by explaining that the withheld details refer to individuals in the care of TUSLA and to the applicant’s colleagues and other individuals.

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual and (xiv) the views or opinions of another person about the individual. Having examined the withheld parts of the records, I am satisfied that they meet both definitions in section 2 and are also captured by the various examples of what comprises personal information about identifiable individuals.
 
The FOI Act provides that personal information does not include certain information about public servants or service providers. However, these exclusions are quite narrow and I do not consider them to be relevant in this case insofar as withheld excerpts referring to the applicant’s colleagues are concerned. 
 

I find that section 37(1) of the FOI Act applies to the withheld parts of the records. This is subject to the consideration of sections 37(2) and (5), however.


Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. I am satisfied that some of the withheld personal information relating to the applicant is inextricably linked to personal information relating to other identifiable individuals. Section 37(7) provides that, notwithstanding section 37(2)(a), a record shall be refused where access to it 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. Accordingly, I am satisfied that section 37(2)(a) does not apply in this case. I am also satisfied that the remaining circumstances set out in section 37(2) do not arise.

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld. 

On the matter of where the public interest lies, I have had 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] 1 IR 729, [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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally. 

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case") which was subsequently upheld by the Supreme Court [NOTE: this should read "Court of Appeal"], said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.” 

The applicant says that she lost her job with TUSLA as a result of information in a particular report. She says that she was not informed prior to being dismissed and was not given any right of reply to the report, made aware of any investigation, or given any information about this further to her FOI request. She says that she has not been able to get a job since, that her life is destroyed and that she needs access to the records in order to get the answers that she has been looking for. 

While I sympathise with the applicant, it is not appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on this basis. It is clear from the Rotunda and F.P. cases that I cannot take into account her private interests in the grant of access to the withheld information. 

Neither is it appropriate for me to direct TUSLA to grant access to the withheld parts of the records on the basis of assertions to the effect that its actions in relation to the applicant may have been unfair. As the Commissioner said in his composite decision in cases  090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement 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. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances." 

In this case, there is a public interest, recognised by the FOI Act, in establishing that TUSLA carried out its functions, including in relation to the applicant, in a way that was consistent with the principles of natural and constitutional justice. It is entitled to significant weight in this case. While this public interest has been served to some extent by those records and parts of records that have been released further to the applicant's FOI request, I accept that it would be further served if access to the requested records was granted in full. 

On the other hand, both 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). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. I am satisfied that placing the withheld excerpts in the public domain would significantly breach the rights to privacy of individuals other than the applicant. 

I find that the public interest in favour of granting access to the withheld parts of the records does not outweigh the public interest that the right to privacy of individuals other than the applicant should be upheld. 

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA’s refusal to fully grant the applicant’s request 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


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