Whether TUSLA was justified in its decision to withhold certain information contained in records relating to the applicant-™s adoption under section 37(1) of the FOI Act

27 January 2020

Background

On 26 July 2017, TUSLA received a request from the applicant for all records relating to her adoption. On 29 September 2017, TUSLA issued a decision wherein it identified three files totalling 68 pages as falling within the scope of the applicant's request. It granted access in full to 19 pages, granted partial access to a further 19 pages, and refused access to the remaining 30 pages, relying on section 37 of the FOI Act to withhold certain information.

The applicant sought an internal review of that decision on 22 May 2019. TUSLA issued its internal review decision on 28 May 2019, wherein it affirmed the original decision, citing both sections 37 and 41 as a basis for withholding the information at issue. On 14 August 2019, the applicant sought a review by this Office of TUSLA's decision.

During the course of the review, TUSLA informed this Office that it wished to rely solely on section 37 to withhold the information at issue.

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

This review is solely concerned with whether TUSLA was justified in withholding certain information from the relevant records under section 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.

Analysis and Findings

The relevant records in this case are held on three files, a Mother and Baby Home file concerning the applicant (three pages) and a separate file concerning the applicant-™s birth mother (10 pages), and an adoption file (55 pages). As well as containing sensitive personal information about the applicant, it also contains sensitive personal information relating to her adoptive parents, her birth parents, and to other third parties.

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, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by the body as confidential.

Having examined the records at issue, I am satisfied that the vast majority of the withheld information is either personal information relating to individuals other than the applicant or personal information relating to the applicant that is inextricably linked to personal information relating to other individuals (i.e. joint personal information). I find, therefore, that section 37(1) applies to the withheld information, with the exception of a small amount of information I have identified below.

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).

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. Indeed, in correspondence with this Office, TUSLA agreed that the information in question could be released under the FOI Act. Pages 7 and 8 of File 3 consist of the applicant-™s birth certificate. Apart from the birth mother-™s surname, I find that section 37 does not apply to the remaining information. In making this finding, I note that TUSLA has already provided the applicant with the birth mother-™s first name.

Furthermore, page 29 of File 3 comprises a handwritten note on a compliments slip. 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 that page.

The Public Interest

Having found that section 37(1) applies to the majority of the withheld information, 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.

In her correspondence with TUSLA, the applicant argued that as she is already aware of certain information relating to her birth mother who is now deceased, she is entitled to see the whole history that was redacted from the records. She also said she is seeking absolute proof of who her biological parents are and that the information is of interest to her in terms of her personal history and medical history.

Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot generally have regard to the applicant's motives for seeking access to the information in question. In relation to the question of the public interest, the reasons for a request are only relevant insofar as they reflect or overlap with what may be regarded as a "true" public interest

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. While the applicant has argued that she already knows particular information regarding her birth mother and therefore this information is already in the public domain, in my view this does not justify directing the release of personal information under FOI potentially to the world at large.

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 withholding certain information from the records relating to the applicant-™s adoption under section 37(1) of the FOI Act, with the exception of parts of the three pages as outlined above.

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 pages 7 and 8 of File 3, subject to the redaction of the birth mother-™s surname and page 29 of File 3.

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