Whether TUSLA was justified in refusing access to records and parts of records concerning herself, her children and other specified individuals

22 April 2020

Background

In an FOI request to TUSLA dated 12 June 2019, the applicant sought access to records relating to herself, her children and a number of other specified individuals. She provided confirmation that her parents and one child consented to the release to her of their personal information. In subsequent correspondence, TUSLA explained why it was only considering records created since the applicant’s previous FOI request of 14 April 2015. However, it did not make a decision within the time frame specified in the FOI Act, which is an effective refusal of the applicant’s request.

The applicant sought an internal review on 26 July 2019. TUSLA’s internal review decision of 16 August 2019 covered 9 files (1,498 records) dating from 14 April 2015. It granted access to some of these records in full and in part. It refused access to the remaining records and parts of records under sections 31(1)(a) (legal professional privilege), 31(1)(b) (contempt of court) and 37 (personal information) of the FOI Act or on the basis that they were not covered by the request.

On 22 August 2019, the applicant applied to this Office for a review of TUSLA’s decision.

The review has taken longer that I would have liked. It was initially delayed because of pressure of work within the Office generally and later, disruption to the work of the Office because of Covid 19. 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, including the 10 emails that she sent to this Office on 23 March 2020. 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 this review is confined to whether TUSLA’s decision to withhold records and parts of records covered by the applicant’s request is justified under the provisions of the FOI Act.

Findings

I have noted the contents of the emails sent by the applicant on 23 March 2020. In particular, I note that she says that this Office told her that she is entitled to the withheld records, including details of what other individuals said about her, because she paid a fee to this Office. She also says that this Office told her that she would receive the records before Christmas 2019.

It appears to me that the applicant misunderstood this Office’s communications with her. Firstly, the FOI Act requires fees to be paid in certain situations. One such situation is where a person applying for a review by this Office is seeking access to records containing personal information about individuals other than the person themselves. A fee must be paid in order for such an application to be considered valid and for a review to commence. However, the payment of that fee does not guarantee that this Office will find that the applicant is entitled to access to the records. Furthermore, the FOI Act provides that reviews shall be concluded within four months where this is practicable. In the applicant’s case, this would have been in or around Christmas 2019. Unfortunately, it was not possible to issue a decision by that date.

It is useful at this point to outline the Commissioner’s approach to granting partial access to records. 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).

TUSLA has gone to considerable effort in examining the content of each record in great detail and releasing as many records and parts of records that refer to the applicant, her parents and children (see below) as it considers her to be entitled to have access to under the FOI Act. While in doing this, it was clearly acting within the spirit of the FOI Act, the Commissioner 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

TUSLA was invited to make submissions to this Office in relation to its decision on the request but did not do so. However, I note the content of the records, the mandatory nature of sections 31(1)(a), 31(1)(b) and 37 of the FOI Act and also that the release of a record under the FOI Act is understood to be effectively the same as releasing it to the world at large. In the circumstances, I consider it appropriate to examine whether the exemptions claimed by TUSLA apply to the records and to begin by considering 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. Personal information is defined in section 2 of the FOI Act 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.

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. While I am required to limit the level of detail I can give in describing the withheld records and parts of records, I am satisfied that they contain personal information and all fall within the definition of personal information in the FOI Act.

Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to 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. In many instances, personal information relating to the applicant is inextricably linked with that of other individuals (joint personal information). Even if it were feasible to separate out information relating solely to the applicant, I would not consider it to be in keeping with the Commissioner’s approach to section 18 in this case to grant access to further parts of the records with such third party information redacted. I find the withheld records and parts of records to be exempt under section 37(1) of the FOI Act. 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. Noting the details released by TUSLA in this case, I am satisfied that no further information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). While the records contain joint personal information, as outlined above, I do not consider that personal information relating to the applicant can be separated from that of other individuals. The records also contain personal information relating entirely to identifiable individuals other than the applicant. Furthermore, insofar as the records include references to Gardaí and/or public servants, I do not consider it in keeping with the Commissioner’s approach to section 18 to grant access to references to Gardaí and/or public servants with the various third party personal information redacted.

Section 37(2)(b) provides for the grant of access to a third party’s personal information where that person has consented to such release. The applicant provided consent from some but not all of the third parties referred to in her request. Noting the details released by TUSLA following those consents and the Commissioner’s approach to section 18, I am satisfied that no further information falls for release further to section 37(2)(b) of the FOI Act in this case. Finally, I am 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 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 the records cannot comprise internal files in that a lot of information was withheld, including contacts with Gardaí and details of who made “all reports”. She is clearly unhappy with TUSLA’s dealings with her family generally and appears to be saying that TUSLA disclosed information about her to third parties. She may also be saying that TUSLA and others influenced third parties to make allegations about her.

While I can appreciate why it is important to the applicant to obtain access to the records, the above judgments make it clear that I cannot take into account her private interests in the grant of access to the withheld information. In any case, it is still possible for the personal information exemption to apply irrespective of whether the records were “internal” or otherwise.  Furthermore, it is not appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is not happy with the actions of TUSLA, other bodies or other parties.

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."

There is a public interest, which is 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. This public interest is entitled to significant weight in this case and I accept that it would be served by granting access to the withheld records and parts of records.

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). Having regard to the contents of the withheld records and parts of records, I am satisfied that placing the details concerned in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant.

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

Section 37(8) of the FOI Act

The Minister for Public Expenditure and Reform has made Regulations under section 37(8)) of the FOI Act, which provide that, subject to certain conditions, a request for records relating to personal information about a minor may be granted where the requester is the minor's parent or guardian. I note that TUSLA’s internal decision says that it had regard to these Regulations and related matters. It has granted access to parts of the records that relate to the applicant’s children.

However, the Regulations only provide a basis for releasing details about a minor child to the parent seeking access to such records, or details about the minor child that are interlinked with details only about that parent. Having regard to the content of the remaining withheld records and parts of records, I do not consider that the applicant has any potential right of access to them under the Regulations. Therefore, I have not considered the Regulations further.

Sections 31(1)(a) and 31(1)(b)

Having regard to my findings on section 37 in this case, there is no need for me to consider TUSLA’s reliance on sections 31(1)(a) and (b) (legal professional privilege and contempt of court) of the FOI Act. However, I can say from my examination of the records that it is my view that these provisions are likely to apply to exempt from release at least some of the withheld records and/or parts of records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA’s refusal of the remaining records and parts of records 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