Whether Tusla was justified in its decision to refuse access to social work records relating to the applicant and his three children under sections 31(1)(a) and or 37(1) of the FOI Act

26 February 2021

Background

On 7 March 2019, the applicant made an FOI request to Tusla for access to all records that it holds relating to himself and his three children. Tusla failed to make a decision on the applicant’s request within the statutory time-limit. On 24 June 2019, the applicant applied to Tusla for an internal review. Tusla also failed to issue an internal review decision within the statutory time limit. On 10 October 2019, Tusla issued its internal review decision. It identified four files of social work records relating to the applicant’s request. It refused access to parts of each file under sections 30(1)(a), 31(1)(a)/(b), 35(1)(a) or 37(1)/(7) of the FOI Act. On 25 February 2020, the applicant applied to this Office for a review of Tusla’s decision.

This Office’s Investigator invited the applicant and Tusla to make submissions during the course of the review. In its submissions, Tusla identified certain records which it stated post-date the applicant’s FOI request and therefore fall outside the scope of his request. Tusla identified certain records that it was willing to release to the applicant. It also identified certain records that it had refused under sections 30(1)(a) and 31(1)(a)/(b) of the FOI Act and it stated that it now wished to rely on section 37(1)/(7) of the FOI Act in support of its decision to refuse access to these records. Finally, Tusla stated that it no longer wished to rely on section 35(1)(a) of the FOI Act. Following Tusla’s submissions, only sections 31(1)(a) and 37(1)/(7) of the FOI Act remain under consideration.

As Tusla revised its position in relation to certain records that are contained in files 1 and 4, it provided this Office and the applicant with updated schedules, which show its revised position in relation to each of the records identified in its submissions. Tusla also provided the applicant with copies of the records that it had decided to release. This Office notified the applicant of all of the new material issues arising from Tusla’s submissions and provided him with an opportunity to make a submission. In his submission, the applicant stated that he wished to include those records created after the date of his FOI request in the scope of this review. This Office informed the applicant that it is not possible to include records created after an FOI request in the scope of a review by this Office, however it is open to him to make a fresh FOI request to Tusla in respect of those records.

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 submissions made to date, I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the review

I am satisfied that file 1 records 72-75, 76 (part), 78-80, 81 (part) 82, 83 (part) comprise emails that were created after the date the applicant’s FOI request and therefore fall outside the scope of this review. As Tusla has now released file 1 records 81 (part), file 4 records 42-43, 400, 403 and 406 to the applicant, I am also excluding those records from the scope of this review.

Accordingly, this review is concerned solely with the question of whether Tusla was justified in its decision to refuse access to the remaining parts of social work files 1-4 under sections 31(1)(a) and/or section 37(1)/(7) of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising in this case, I would like to set out some preliminary points that are relevant to my review.

First, the FOI Act provides that a decision on an FOI request shall be made within four weeks of receiving the FOI request and a decision on an internal review request shall be made within three weeks of receiving the internal review request. In this case, Tusla failed to meet either of these statutory time limits. The internal review decision included an apology but no explanation for the delay or the failure to adhere to statutory time limits. The failures to comply with the timeframes set out in the FOI Act in this case are unsatisfactory.

Second, the applicant contends that while he has sought the requested information under the FOI legislation, he has an entitlement under GDPR to obtain data concerning himself, which he believes extends to his children. I can only consider the applicant’s request under the provisions of the FOI Act and, as such, this decision does not address any alternative rights of access that the applicant may have.

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner. This means that an applicant’s motivation cannot be considered except insofar as such reasons are relevant to consideration of the public interest or other provisions of the FOI Act. The public interest factors considered in this review are set out below.

Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

Section 31(1)(a) Legal Professional Privilege

Tusla refused access to file 1 records 67-70 and file 4 records 37-39, 91, 93-94, 99, 414-415, 421-422, 426 and 432-433 on the basis that they are exempt under section 31(1)(a) of the FOI Act. Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege);

and

(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.

I have considered each of the records to which Tusla asserts section 31(1)(a). The records at issue contain correspondence between members of staff of Tusla and Tusla’s solicitors. I have examined the records closely and I accept that they contain requests for and the provision of legal advice. I find, therefore, that file 1 records 67-70 and file 4 records 37-39, 91, 93-94, 99, 414-415, 421-422, 426 and 431-433 are exempt under section 31(1)(a) of the FOI Act on the basis of legal advice privilege.

Section 37 - Personal Information

Tusla refused access in full or in part to records contained in files 1-4, as identified on the schedules provided to the applicant and to this Office, on the basis that they are exempt under section 37(1)/37(7) of the FOI Act.

Section 37(1) and 37(7) - Personal Information

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. 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. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

Section 2 of the FOI Act defines "personal information" as information about an identifiable individual that, either - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (i) information relating to the educational, medical, psychiatric or psychological history of the individual; (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual (xiv) the views or opinions of another person about the individual.

I am satisfied that none of the withheld parts of files 1-4 contain information which is personal information relating solely to the applicant. The information withheld is either the personal information of third parties or personal information relating to the applicant and/or his children which is inextricably linked with the personal information of third parties. It may well be the case that a considerable amount of the withheld information is generally known to the applicant. Nevertheless, I must consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to “the world at large”, as the FOI Act places no restriction on the subsequent uses to which the record may be put.

I have taken account of section 18 of the FOI Act as referred to earlier in this decision. However, having regard to the content of the withheld information it seems to me that it is not practicable to separate the personal information of the applicant or his children from the personal information of the third parties. On that basis, I find that the withheld parts of files 1-4, as identified on the schedules provided, are exempt from release on the basis of section 37(1) and section 37(7) subject to the provisions of section 37(2) and 37(5), which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue 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) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance (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 information would be to the benefit of the person to whom the information relates. I am satisfied that subsection 5(b) does not apply in the circumstances of this case. Accordingly, I will now address whether or not section 37(5)(a) of the FOI Act applies in this case.

Section 37(5)(a) - The Public Interest

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had 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] 1 IR 729, [2011] IESC 26) (“the Rotunda case”). In this regard, I note 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.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the FOI Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both 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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only in circumstances 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 seems to me that in this case, TUSLA sought to provide as much information as possible relating to the applicant and his children while simultaneously seeking to protect the privacy rights of other parties. The information at issue is of an inherently private and sensitive nature. As I set out above, I am also cognisant of the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.

Having carefully considered the matter, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply.

Consequently, I find that TUSLA was justified in refusing access to the withheld information under section 37(1).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act, I affirm Tusla’s decision in this case. I find that Tusla was justified in refusing access to file 1 records 67-70 and file 4 records 37-39, 91, 93-94, 99, 414-415, 421-422, 426 and 431-433 under section 31(1)(a) of the FOI Act on the basis that these records would be exempt from production in a court on the grounds of legal professional privilege.

I find that Tusla was justified in refusing access in full or in part to the remaining records at issue under 37(1) of the FOI Act as their release would involve the disclosure of third party personal information or joint personal information and the public interest that the request should be granted does not outweigh the public interest that the right to privacy of those individuals should be upheld.

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