Whether TUSLA was justified in refusing access to records relating to the applicant on the basis of section 15(1)(a) of the FOI Act
4 December 2020
Background
In a request dated 11 March 2020, the applicant sought access to records relating to an investigation carried out by the Capel Guardians. Specifically, she looked for all “records from the investigation carried out by the Capel Guardians regarding all of the interviews about my complaints with your staff.” The Capel Guardians were an independent complaints review panel commissioned by Dublin North Fostering Services and National Adoption Services senior management to conduct an independent investigation of a series of complaints made by the applicant regarding TUSLA.
The scope of the request to TUSLA was clarified before the original decision was made. Accordingly, the original decision stated that the applicant was seeking access to notes of interviews held in relation to her complaints. TUSLA refused the request on the basis of section 15(1)(a) of the FOI Act i.e. the records do not exist or cannot be found after all reasonable searches. The applicant sought an internal review. In an internal review decision dated 17 July 2020, TUSLA refused the request on the grounds that the records do not exist and therefore section 15(1)(a) of the FOI Act applies. On 20 July 2020, the applicant applied to this Office for a review of TUSLA’s decision on the grounds that she was aware that more records existed.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant’s comments in correspondence with this Office and to the submissions made by the FOI body in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
This review is concerned with whether TUSLA was justified in refusing access to notes of interviews relating to complaints made by the applicant on the basis of section 15(1)(a) of the FOI Act.
It is important to note that this review is concerned with notes of interviews only. TUSLA sought to clarify the scope of the request before the original decision was made and it is clear from both the original decision and the internal review decision that this request relates to notes of interviews only.
The applicant also made a separate request to TUSLA regarding records associated with the Capel Guardians; however, that request (TUSLA reference T13-2020) is separate and distinct from this request (TUSLA reference T27-2020), which deals with the notes of interviews regarding the applicant’s complaints.
The applicant, in correspondence with this Office, stated that other records of the Capel Guardians exist and this is indeed correct. TUSLA noted in submissions that there are records from the Capel Guardians, as these records were searched for relevant interview notes, but that these records are outside the scope of the applicant’s request in this instance. I accept that any such records are outside the scope of this particular request and this review is concerned solely with whether or not TUSLA carried out reasonable searches for notes of interviews.
Preliminary matters
I wish to note at the outset that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigate complaints against a public body, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This review is confined to considering TUSLA’s refusal of the applicant’s FOI request.
As the role of this Office is to review decisions made by public bodies, not to effectively act as a first instance decision maker, it is not open to me to consider any additional records, or searches for records, that the applicant wishes to include in this review as there is no decision on those records before me. The applicant is entitled to submit fresh requests to TUSLA and to follow the usual process in relation to any such requests, including application to this Office if she wishes.
Analysis and Findings
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
It is important to note that the role of this Office is confined to determining whether TUSLA has carried out all reasonable steps to locate the records. The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. Furthermore, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
The applicant stated that she was aware that sealed records had been returned from the Capel Guardians to TUSLA and provided this Office with a letter from the Capel Guardians in support of this. On this basis, the applicant did not accept that there were no relevant records. She was also concerned that TUSLA was destroying records and wished to ensure that the records would be preserved. The Investigator in this case put a number of questions to TUSLA regarding the searches that were carried out in response to the applicant’s assertion that further records ought to exist.
TUSLA’s response was that records have been destroyed but that this has been done in line with Data Protection requirements and was not in fact done by TUSLA, but rather by the Capel Guardians in accordance with their contractual obligations. TUSLA said that the Capel Guardians are obliged not to retain notes of interviews, which is the basis of the applicant’s request, once an investigation has completed.
TUSLA noted that the investigation process had concluded and, as such, the Capel Guardians were contractually obliged to destroy any records that were held by it. Specifically, TUSLA referred to section 12 of the data processing addendum of the contract which stated that:
“Subject to the instructions of the Data Controller, the Data Processor and each Sub-Processor shall promptly and in any event within 60 Days of the date of cessation of any Services involving the Processing of Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of Personal Data held by the Data Processor, and associated sub-processors.”
On 12 December 2019, TUSLA sought confirmation from the Capel Guardians that it had complied with this contractual requirement and confirmation was received in response that this requirement had been complied with. The Capel Guardians therefore no longer held any records relating to the complaints investigation process.
TUSLA further noted that Article 5(1)(e) of the General Data Protection Regulation (GDPR) states that: “Personal data shall be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed”. It said that as a result of this that personal data cannot be kept for longer than necessary. In this case, there was no longer any basis for retention as the investigation had concluded.
As referenced above, the applicant provided a letter to this Office from the Capel Guardians stating that records had been returned to Mr. Pat Osborne in TUSLA. TUSLA acknowledged that Mr. Osborne had been the liaison in relation to the complaints investigation and acknowledged that it held these records. They were searched as a part of the process but did not include any notes of interviews. For the sake of clarity, TUSLA stated that they consisted of correspondence regarding the applicant’s complaints as well as a copy of the contract and the Data Processing Agreement. They did not contain any original notes, copies of notes or transcriptions of recordings taken during the course of the independent complaints investigation process.
TUSLA also confirmed to this Office that it had never been in receipt of any records created as a result of the investigative process and, further, that any staff members who had partaken in the interview process were not permitted to take notes so no records were created by TUSLA staff.
Having considered the submissions made by TUSLA, I am satisfied that the records sought by the applicant no longer exist. I find therefore, that TUSLA was justified in refusing access to the records sought and that section 15(1)(a) of the FOI Act applies.
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 on the basis of section 15(1)(a).
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.
Deirdre McGoldrick
Senior Investigator