Whether TUSLA was justified in refusing access to records under sections 15(1)(a) and 37 of the FOI Act

31 January 2020

Background

On 3 December 2018, the applicant made an FOI request to TUSLA for all personal data relating to her employment; data relating to an issue that arose with a named person; correspondence relating to all interviews; references submitted on her behalf, as well as correspondence from named people. TUSLA identified and scheduled a large number of records and issued a decision in three letters, on 19 December 2018, 19 February 2019 and 28 March 2019. It granted access to some information and refused access to the remaining records on the grounds that they were exempt under sections 37(1) and (7) of the FOI Act. On 14 March 2019, the applicant applied for an internal review decision. On 28 June 2019, TUSLA issued an internal review decision, in which it affirmed its original decision. On 25 July 2019, 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 TUSLA.  I have also had regard to the contents of the records at issue and the provisions of the FOI Act. 

Scope of the Review

I have adopted the numbering used by TUSLA in its schedule of records. During the review process, TUSLA released further information in Files 3, 4, 5, 7, 8, 12, 13, 14 and 15 to the applicant, under section 37(8) of the FOI Act. TUSLA also identified a further record within the scope of the applicant-�s FOI request and released that to the applicant. The released information falls outside the scope of this review.

Accordingly, this review is concerned with whether TUSLA was justified in refusing access to the information which remains withheld in Files 1, 2, 3, 6, 7, 11, 13 and 14, under sections 37(1) and (7) of the FOI Act. The applicant queried whether there were missing records and I therefore also consider section 15(1)(a).

Preliminary Matters

First, 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. Secondly, 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. Finally, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

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

In her application for review, the applicant says that she has received no information in relation to certain matters. At the outset, it is important to note while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. Requests for information, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.

In correspondence with the Investigator, the applicant referred to three categories of records which she said TUSLA must hold in relation to her FOI request: (1) records referred to in a certain email specified by the applicant; (2) records relating to an issue that arose with a named person; and (3) records containing information relating to the applicant from specified time periods in 2015, 2016 and 2017. In the circumstances, it is appropriate for me 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 it had taken to search for the records and pointed TUSLA to the categories of records identified by the applicant. TUSLA advises that the position is as follows. The records referred to in category (1) are six files which are included in the records under review and category (2) comprises correspondence which is also contained in the records under review, as well as the record which was released during the review. A separate question then arises as to whether the applicant is entitled to access the withheld records under the FOI Act. I address this below. TUSLA notes that category (3) does not specify particular information but rather refers to timeframes. It says that it has provided all records relating to the applicant, including records from those timeframes.

In short, TUSLA says that it retrieved all personnel files for the applicant and undertook manual and electronic searches, including in locations where the applicant had worked previously,  and spoke to all parties involved. In the circumstances, 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. I will now consider the withheld information, under section 37.

Section 37 - Personal information

Sections 37(1) and 37(7)

TUSLA claims section 37 of the FOI Act over the 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-�, -�(iii) information relating to the employment or employment history of the individual-� and -�(xiv) the views or opinions of another person about the individual-�.

Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, as this Office observed in Case 090045 (Mr X and University College Cork), this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally".

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.

Files 1, 2, 3 and 7 contain the following kinds of information relating to individuals other than the applicant: application forms, curriculum vitae, interview correspondence, interview marking- sheets and information relating to welfare entitlements and medical histories. File 6 contains information which, as well as relating to the applicant, also discloses personal information relating to other individuals who expressed certain opinions and concerns about individuals other than the applicant. I believe that I can take it from the content and context of the records that the information was given on the understanding that it was confidential. In theory, one could extract certain words and phrases from those records which relate to the applicant and not to the other individuals. I have considered whether this would be practicable in the circumstances. However, those words and phrases appear in the context of information relating to the third parties concerned. Having regard to section 18 of the FOI Act, I conclude that to provide redacted copies of the records would be to provide misleading records. File 6 also contains information expressing concerns about the welfare of certain individuals other than the applicant and which again I can take from its content and context to have been provided in confidence. File 14 contains similar information to that in File 6. File 11 contains information relating to a workplace dispute between staff members of an FOI body and names an individual other than the applicant. File 13 contains information relating to specific work arrangements of staff members of FOI bodies. Having regard to content of the particular information in Files 11 and 13, I do not consider that it is covered by the exclusion in Paragraph I of section 2. In conclusion, I find that section 37(1) applies to the withheld information. This finding is subject to other provisions of section 37, which I examine below.

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 (or at all) 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. I must also bear in mind that release under FOI is effectively release to the world at large. Having regard to the content of the withheld information, I do not consider that releasing it would serve a public interest in transparency around TUSLA and its functions. I am not satisfied that the public interest in granting the request outweighs the right to privacy of the individuals other than the applicant. 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. I find that TUSLA was justified in refusing access to the withheld information under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm TUSLA's decision under section 15(1)(a) and 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