Whether TUSLA was justified in refusing access to records relating to the applicant on the basis that the applicant could not appropriately consent to the appointment of a nominated representative

6 October 2020

Background

In a request dated 5 March 2020, the applicant sought access to files relating to her time spent in the care of TUSLA as well as files relating to the time prior to her entry into care.   The applicant’s request was submitted on the applicant’s behalf by an Advocacy Officer of a certain charitable organisation. 

Following TUSLA’s contact with the applicant, the scope of the request was reduced to all files from the time the applicant came to the attention of TUSLA in 2010 until her entry into care in 2012. 

In a decision dated 22 June 2020 TUSLA refused the applicant’s request.  The decision-maker stated that as wardship proceedings were underway in relation to the applicant it could not confirm the validity of the consent provided by the applicant in appointing a representative.  TUSLA indicated that a further request could be submitted by the applicant herself but indicated that it was preferable that this be after the conclusion of the wardship proceedings. 

On 23 June 2020 the applicant sought an internal review of this decision.  On 21 July the internal reviewer affirmed the original decision. On 23 July the applicant applied to this Office for a review of TUSLA’s decision.

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 her application for review and to the submissions made by TUSLA.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is solely concerned with whether TUSLA was justified in refusing the applicant’s request for records relating to her for a specified period.

Preliminary Matter

Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. In light of that requirement, the description I can give of TUSLA's submission and of the reasons for my decision are limited in this case.

Analysis and Findings

Section 37(1) of the FOI Act 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. Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply, including where (a) the information concerned relates to the requester concerned or (b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester (subsection (1)(b)).

As outlined above, TUSLA refused the request on the basis that it could not confirm the validity of the consent provided by the applicant in appointing a representative.  I take this as a concern about the potential release of personal information relating to the applicant to an individual or individuals other than the applicant in circumstances where it had concerns about the consent provided. However, during the course of the review, TUSLA informed this Office that, in light of the fact that the wardship proceedings in relation to the applicant had in the interim been dropped, it was no longer the case that it was questioning the validity of the appointment of a representative by the applicant.    

As such, I find that TUSLA was not justified in refusing the request on the grounds cited. However, given the circumstances, I do not consider it appropriate to simply direct the release of the records to the applicant. I understand that a large number of records fall to be considered for release, many of which are likely to contain joint personal information about the applicant and other individuals. Section 37(7) provides for the refusal of a request where access to the records sought would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).

Accordingly, I consider that the appropriate course of action is to annul TUSLA's decision and to direct it to make a new first instance decision in respect of the applicant’s original request. The applicant will have a right to an internal review and a review by this Office if she not satisfied with TUSLA's decision. I appreciate that remitting the case back to TUSLA causes further delay for the applicant. However, I do not believe that there is an alternative appropriate course of action to take in this instance.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the decision of TUSLA and direct it to undertake a fresh decision-making process in respect of the applicant’s request.

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