Whether Tusla was justified in refusing the applicant’s request for certain records relating to sexual abuse investigations under section 37(6) of the FOI Act and in finding that the second part of his request was not a valid request

11 August 2020

Background

The applicant in this case is a former member of An Garda Síochána (AGS). In an e-mail dated 11 July 2019, he said he was involved in a number of sexual abuse investigations and was a party to the multi-agency meetings/communications etc. with HSE South personnel during 1989 to 2001. He said the cases included a number of named families.

He sought access to all notifications/communications etc. to and from him, dates and notes of subsequent meetings, including those at the Family Centre/Sexual Assault Unit at a named hospital. He also sought information in relation to the date of introduction, the purpose of and legal basis/framework etc. for establishing the multi-agency approach to child safeguarding issues including enacted legislation giving effect to such action.

On 12 July 2019, Tusla asked the applicant to confirm his request. It explained that Tusla records are held in the names of the children involved, rather than those of the parents/social workers/interested parties etc. and that it might not be able to determine what files might hold relevant records. On 30 July 2019, the applicant provided details of cases concerning a number of specific individuals for which he was seeking records.

In a letter dated 13 August 2019, Tusla informed the applicant that it did not consider the second part of his request to be a valid request for records. Rather, it considered the request to be a request for certain information. Nevertheless, it provided further information concerning the arrangements that were in place at the time for the safeguarding of children. It referred to previous correspondence with the applicant on that specific matter.

On 14 August 2019, Tusla refused the request for records relating to sexual abuse investigations and it relied on section 37(6) of the Act to refuse to disclose whether any relevant records exist on the ground that disclosure of the existence or non-existence of records falling under the scope of the request would involve the disclosure of personal information of parties other than the applicant.

On 16 September 2019, the applicant sought an internal review of that decision. Among other things, he argued that he is entitled to know what information exists and is recorded or attributed to him in each of the particular cases. On 20 December 2019, Tusla affirmed its decision to refuse the request. In a letter received on 9 June 2020, the applicant sought a review by this Office of Tusla’s decision.

I have now completed my review in this case. In conducting the review, I have had regard to the correspondence between the applicant and the Council as outlined above and to communications between this Office and both the applicant and the Council on the matter.

Scope of the Review

The scope of this review is concerned solely with whether Tusla was justified in refusing the applicant’s request for certain records relating to sexual abuse investigations under section 37(6) of the FOI Act and in finding that the second part of his request was not a valid request.

Preliminary Matters

Before I address the substantive issues arising in this case, I wish to make the following comments.

First, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. Accordingly, in the analysis which follows, I must be careful not to disclose whether or not a record of the type sought by the applicant exists.

Secondly, it is important to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

Thirdly, in a submission to this Office the applicant argued that he wished to view the records sought in order to ensure that the information relating to him was accurate. Section 9 of the Act provides for the right of amendment of incomplete, incorrect, or misleading personal information contained in a record held by a public body. While section 9 may arguably be regarded as recognising a public interest in ensuring that personal information held by public bodies is accurate, complete, and not misleading, it does not provide for a right of access to an otherwise exempt record in order to determine if an application for amendment of personal information in the record might be appropriate.

Analysis and Findings

Part 1

Tusla refused the applicant’s request for records relating to sexual abuse investigations under section 37(6) of the FOI Act. Section 37(1) is a mandatory exemption which requires the FOI body to refuse a request, subject to the other provisions of section 37, where it considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Section 37(7) further provides for the refusal of a request where the body considers that 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 an individual other than the requester.

Section 37(6) of the FOI Act provides that where a body considers that disclosure of the existence or non-existence of a record would involve the disclosure of personal information relating to an individual other than the requester, the body shall refuse to grant the request and shall refuse to disclose to the requester whether or not the record exists. This provision of the Act is intended to protect the personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would effectively disclose that party's personal information.

The usefulness of section 37(6) depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist.

In short, for section 37(6) to apply, the following requirements must be satisfied:

1. the record sought must be of a type which would disclose the personal information of a third party, if it existed, and which would be exempt from release by virtue of section 37(1) of the FOI Act;
2. none of the exceptions to the section 37(1) exemption, contained at sub-sections (2) or (5) of section 37, applies or, in the case where relevant records do not exist, would apply if such records did exist; and
3. the FOI body must be of the opinion that to state whether or not relevant records exist would in itself be to disclose the personal information of a third party.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual of his/her family or friends or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.

The records sought in this case are records relating to sexual abuse investigations concerning specific, named individuals. I have no doubt that the disclosure of such records, if they exist, would involve the disclosure of very sensitive, personal information relating to the individuals concerned and that section 37(1) would apply to such records.

Section 37(2) provides that section 37(1) does not apply to a record if (a) the information concerned relates to the requester; (b) the third party has consented to the release of their personal information; (c) the information is of a kind that is available to the general public; (d) the information at issue belongs to a class of information which would or might be made available to the general public; and (e) disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.

If the records sought exist, the fact that the applicant may be mentioned in the records as a member of AGS involved in the investigation of sexual abuse does not mean that section 37(2)(a) serves to disapply section 37(1). Section 37(2)(a) simply means that a record cannot be refused under section 37(1) if the personal information that would be disclosed by the release of the record relates solely to the applicant. Given the nature of the record sought, the release of such records, if they exist, would disclose personal information relating to the third parties concerned. I am satisfied that none of the provisions of section 37(2) would serve to disapply section 37(1) in this case.

Sections 37(5)(a) and (b) provide that a record, which is otherwise exempt under section 37(1), may be released in certain limited circumstances. The effect of section 37(5)(b) is that such an exempt record may be released if it can be demonstrated that the grant of the request would benefit the third party whose personal information is contained in the records. I find that section 37(5)(b) would not apply in this case, if the requested records existed.

Section 37(5)(a) 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, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates.

In considering the public interest test in section 37(5)(a), I must have regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), available at www.oic.ie. In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, “a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law” must be distinguished from a private interest for the purpose of section 37(5)(a).

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.

It is of some significance that release of information under FOI is, in effect, release to the world at large as the Act does not make any provision for restricting the use of information released pursuant to an FOI request. It seems to me that records of the type sought by the applicant in this case are of an inherently private nature, and that their disclosure, if they existed, would involve the disclosure of sensitive personal information relating to identifiable third parties. As such, I am satisfied that the public interest in granting the request would not, on balance, outweigh the right to privacy of the individual to whom the information relates.

In conclusion, therefore, I am satisfied that if the records sought existed, they would be exempt from release under section 37(1) of the FOI Act. I am also satisfied that the disclosure of the existence or non-existence of the records sought would involve the disclosure of personal information relating to the parties identified by the applicant in his correspondence with Tusla. Accordingly, I find that Tusla was justified in refusing the first part of the applicant’s request under section 37(6) of the FOI Act.

Part 2

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. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Section 12(1)(b) of the Act provides that a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. Having carefully considered part 2 of the applicant’s request, it seems to me that it does not constitute a valid request for access to records in accordance with section 12(1)(b). It is clear to me that he was essentially seeking information relating to the establishment of the multi-agency approach to child safeguarding. I note that Tusla assisted the applicant by providing information to him in an attempt to answer his queries. I find that Tusla was justified in treating part 2 of the request as invalid. If the applicant wishes to obtain specific records relating to Tusla’s approach to child safeguarding, it is open to him to submit a fresh request for such records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision to refuse the applicant’s request for certain records relating to sexual abuse investigations under section 37(6) of the FOI Act and to refuse the second part of his request on the ground that it was not a valid request for records.

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