Whether Tusla was justified in refusing access to records relating to the applicant’s time in residential care under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with or disruption of its work

11 November 2020

Background

The applicant previously lived in four different residential units over a five year period. She is now an adult and appears to be considering or is already engaged in a personal injury claim against Tusla relating to the time spent in its residential care. The applicant has been represented by her solicitors in all matters relating to this review. Accordingly, all references to engagements with the applicant should be taken to include all engagements with her legal representatives.

In a letter to Tusla dated 9 April 2020, the applicant made a number of allegations concerning her care and treatment while in care. She said she expected Tusla to disclose any documentation that it holds “relevant and material to this action, to include, but not limited [to] all personal information pertaining to [her]”.

Upon receipt of the request, Tusla’s FOI Officer engaged in written and telephone correspondence with the applicant who confirmed that the request related to records regarding her time in residential care. On 27 April 2020, Tusla informed the applicant that it was considering a refusal of the request under 15(1)(c) of the FOI Act having regard the volume of records that would have to be processed. It said it had identified 15 boxes of relevant records. It invited the applicant to engage in a process to reduce the scope of the request. It said it hoped to assist the applicant in obtaining the information she was seeking by making the request specific to particular records, sequence of events or time period, thus reducing the volume of records to be processed. It provided details of four residential units, the dates she resided in those units, and the number of boxes of records located relating to her time in each unit. It also provided 13 different examples of the type of records held by Residential Services.

In a letter dated 9 April 2020 but attached to an email dated 14 May 2020, the applicant said that as her complaint relates to her time in care, it was difficult to narrow her request at that time. She suggested that in order to reduce the quantity of information sought, she wanted the release of all 13 categories of records Tusla had identified, and also all medical reports prepared regarding her physical or mental health. She also said she was reserving her right to seek further discovery as matters progress.

In its response of 21 May 2020, Tusla clarified that the 13 categories were merely examples of the types of records it held and that it was not suggesting that all of these records could be processed. It said they were provided as a guide to help reduce the scale of the request. It said it was not feasible to process 15 boxes of records for one individual. It offered the applicant an opportunity to discuss options to reduce the scope by phone and indicated that the request would be refused under section 15(1)(c) if the scope was not significantly reduced.

It appears that on 9 July 2020, Tusla received a reply from the applicant again reiterating the request for access to all records and stating that if confirmation of the provision of data requested was not received within 28 days there would be no option but to apply to court for order compelling pre-proceedings discovery.

In a decision dated 22 July 2020, Tusla refused the request under section 15(1)(c) of the FOI Act. On 21 August 2020, the applicant sought an internal review of that decision, following which Tusla affirmed its original decision. By letter dated 15 September 2020, the applicant sought a review by this Office of Tusla’s decision.

During the course of the review, the investigating officer provided the applicant with the key details of Tusla’s submission, in which it explained why it decided to refuse the request under section 15(1)(c) of the Act. She informed the applicant of her view that Tusla’s decision was justified. In a response dated 30 October 2020, the applicant stated that it was impossible to limit the scope of the request and acknowledged that she had not meaningfully reduced the scope of the original request. She explained that she required the complete residential care records in order to engage a liability expert. The applicant submitted that the FOI request should be processed.  Accordingly, I have decided to conclude this case by way of formal binding decision.

In conducting my review, I have had regard to the correspondence between Tusla and the applicant as outlined above and to correspondence between tis Office and both Tusla and the applicant on the matter.

Scope of Review

This review is concerned solely with whether Tusla was justified in its decision to refuse the applicant’s request for all records relating to her time in residential care under section 15(1)(c) of the FOI Act.

Preliminary Matter

In essence, the applicant’s argument is that she is not in a position to reduce the scope of her request as she requires access to all records in order to determine their relevance to her action against Tusla and to properly prepare and present her case.

As previously explained to the applicant, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records at issue, 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 Act requires a consideration of the public interest (not relevant in this case).

Analysis and Findings

Section 15(1)(c) provides for the refusal of a request where the FOI body considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular functional area) of the FOI body concerned.

In its submissions to this Office, Tusla explained that the applicant had lived in four different residential units (three statutory and one private provider) spanning a period of almost five years. It said there were 15 boxes of paper records, which would need to be retrieved from archives. Tusla estimated that there are approximately 1,500 or more records per box, which could mean that approximately 22,5500 would fall to be processed. It said that some records such as incident reports are held electronically on its systems but the copies of these are also held on the paper records. It explained that the paper records are considered the master file for residential records.

Tusla added that various records in the boxes would have to be scanned to facilitate e-redacting. It said that various records would need to be photocopied prior to scanning as some are bound books and this would also be necessary to protect the fragility of some records. It said that some records may need to be enhanced on the photocopier due to faint print. It said some files would have to be taken apart for scanning before being returned to the original order. Tusla noted that Residential Care records generally contain a lot of third party information due to the nature of the type of incidents recorded. It said that each individual record would have be read for an initial first pass redaction and then a second pass redaction to form a decision to release or withhold. It submitted that a schedule of records would have to be prepared and that final checks on records would have to be completed before being released to the requester.

Tusla said that to carry out the steps outlined above, it estimated that it would require one person working approximately four weeks to complete the processing of one box, or 15 staff working a 37 hour week for four weeks to complete the processing of all 15 boxes. Tusla explained that the National Children’s Residential Service has one FOI Decision Maker and one support staff member for FOI. It explained that the support staff provision is purely on a needs basis only and both staff members have other duties and cannot dedicate a full working week to FOI. It outlined that there are no further staff in this functional area with FOI experience and expertise necessary to process requests.

When informed of the details of Tusla’s submission, the applicant simply reiterated her view that it was not possible to narrow the scope of her request and she again explained why she required access to all of the records. She argued that under the FOI Act, she was entitled to access all records relating to her.

Regardless of the applicant’s entitlements under the Act, section 15(1)(c) of the Act is an express acknowledgement of the fact that there are limits to the resources a public body must expend on processing requests. The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources.

I accept Tusla’s explanation of the time and resources that would be required to retrieve and examine the records coming within the scope of the applicant’s request. I also accept Tusla’s contention that processing the request would cause a substantial and unreasonable interference with, and disruption of, its work, including disruption of work in a particular function area. I find, therefore, that Tusla was justified in deciding that section 15(1)(c) should apply.

Section 15(4) of the FOI Act provides that an FOI body shall not refuse a request pursuant to section 15(1)(c) unless it has assisted, or offered to assist, the requester in an effort to amend the request for re-submission so that it no longer falls within section 15(1)(c).

As set out in the background section of this decision, there were a number of exchanges of correspondence between the parties concerning the scope of the request. Tusla provided this Office with a copy of this correspondence. Having regard to those exchanges, I am satisfied that Tusla offered reasonable assistance to the applicant to refine the request. In the circumstances, I am satisfied that Tusla has fulfilled the requirements under section 15(4).

In conclusion, therefore, I find that Tusla was justified in its decision to refuse the applicant’s request for all records relating to her time spent in residential care under section 15(1)(c) of the FOI Act on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work. It remains open to the applicant to submit a revised request if she wishes to do so.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Tusla to refuse the applicant’s request for all records relating to her time spent in residential care under section 15(1)(c) 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