Whether TUSLA was justified in refusing access to records relating to the applicant’s birth parents, under sections 37(1) and 41(1)(a) of the FOI Act

6 August 2020

Background

On 23 August 2019, the applicant made an FOI request to TUSLA for “information and/or records on my birth mother and/or father that are available”. On 10 October 2019, TUSLA issued a decision, in which it granted access to some information and refused access to the remaining records on the grounds that they were exempt under sections 35, 37(1) and 41(1) of the FOI Act.

On 1 November 2019, the applicant sought an internal review of that decision. On 28 January 2020, TUSLA issued an internal review decision in which it varied its original decision. It granted access to more information and refused access to the remaining records on the grounds that they were exempt under sections 37(1) and 41(1)(a) of the FOI Act. On 13 May 2020, the applicant sought a review by this Office of TUSLA's decision.

I have now completed my review of TUSLA’s decision. In conducting my review, I have had regard to the correspondence between TUSLA and to the correspondence 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 the Review

During the course of the review, TUSLA released further information in Record 16, which therefore no longer needs to be considered. I also note that Records 17, 41, 44 and 63-76 contain information relating to the applicant’s adoptive parents and not to his birth parents. I am satisfied that this information falls outside the scope of the applicant’s FOI request, which sought access to information about his birth parents.

Accordingly, my review is concerned solely with whether TUSLA was justified, under sections 37(1) and 41(1) of the FOI Act, in refusing access to the remaining withheld records coming within the scope of the applicant’s FOI request.

Preliminary Matters

Before I address the substantive issues arising, I would like to make the following comments. 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, 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) as the Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Thirdly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.

Analysis and Findings

Section 37 - Personal information

TUSLA argued that section 37 applies to all of the records at issue. 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).

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. Those 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 “(viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status (within the meaning of section 2(1) of the Civil Registration Act 2004) of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual".

The records contain information relating to the applicant’s birth parents, such as their forenames and surnames, dates of birth, addresses, information about their marital status, work history and well-being. Furthermore, they disclose information such as names, dates of birth and reference numbers relating to other individuals. The records also contain the applicant’s birth surname. Although this relates to the applicant, it simultaneously discloses personal information relating to the applicant’s birth parents. I am therefore satisfied that it qualifies as “joint personal information” under section 37(7). I find that section 37(1) of the FOI Act applies to the records. 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 this information. That is to say, (a) it does not relate solely 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)

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where (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 request would benefit the person to whom the information relates. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

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. I also note that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. It is noteworthy that unlike other public interest tests provided for in the FOI Act, section 37(5)(a) is discretionary, which is a further indication of the very strong public interest in the right to privacy. 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.

As noted above, I am required to disregard the applicant's reasons for his FOI request. Therefore, I can only take into account the purpose for which he seeks this information insofar as he identifies a public interest. The applicant says that he is being denied basic information in relation to his identity and that of people who brought him into the world. He says that he understands privacy concerns, but queries how giving an individual access to information about their own identity can be considered “release to the world at large”. He says that he is a private person and should be entitled to information that concerns him personally without fear of it being broadcast publicly. He submits that the argument that him knowing information about a third party is a “significant invasion of privacy” while the same records are accessible to the agency is illogical. I have a great deal of sympathy for the applicant. However, I am bound to treat his interest in seeking access to information about his own identity as a private rather than a public interest.

Nevertheless, as I have explained above, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. Indeed, section 11(3) requires FOI bodies, in performing any functions under the Act, to have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs.

The question I must consider, therefore, is whether the public interest in enhancing the openness and transparency of TUSLA in relation to its dealings with the applicant outweighs, on balance, the privacy rights of the individuals whose personal information would be disclosed by the release of the records at issue. In my view, it does not. In holding that view, I am cognisant of the fact that the information at issue is of an inherently private nature and of the fact that release of the information must essentially be regarded as release to the world at large. In the circumstances, I find that section 37(5)(a) does not apply.

In conclusion, I find that TUSLA was justified in refusing access to the records under section 37(1) of the FOI Act. As I have found Record 47 to be exempt under section 37(1), it is not necessary for me to consider whether it is also exempt under section 41(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm TUSLA's decision to refuse access to the records at issue 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.

 

Stephen Rafferty

Senior Investigator