Whether TUSLA was justified in refusing access to one record it identified as relevant to the applicant’s request for records relating to his social media pages under section 31(1)(b) of the FOI Act and in refusing access, under section 15(1)(a), to any further records on the ground that no further relevant records exist or can be found

23 February 2021

Background

The applicant is the son of a foster parent. Family law proceedings arose regarding a child in the care of the foster parent. The applicant was not a party to the proceedings.  In a request dated 20 April 2020, he sought access to all records regarding any of his social media pages from April 2018 to the date of his request. As TUSLA failed to make a decision within the statutory timeframe, he sought an internal review of the deemed refusal of his request on 28 May 2020.

On 21 July 2020, TUSLA issued its internal review decision wherein it granted partial access to one record with certain information redacted under section 37 of the Act and it refused access to a second record under section 31(1)(b). On 22 July 2020, the applicant sought a review by this Office of TUSLA’s decision. Among other things, he argued that further relevant records should exist.

During the course of this review, the investigating officer sought submissions from TUSLA on the searches carried out to locate relevant records and on its decision to refuse access to records under sections 31 and 37 of the FOI Act. She subsequently provided the applicant with the details of the searches carried out by TUSLA and of its explanation as to why no further relevant records could be found or exist. She informed the applicant of her view that TUSLA was justified in refusing access to any further relevant records under section 15(1)(a) of the FOI Act. She also outlined her views in respect of the two records considered by TUSLA when processing the request. She invited him to make a submission on the matter. On 10 February 2021, the applicant responded indicating he believed that further records exist.

In the circumstances, I consider it appropriate to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the TUSLA and the applicant as outlined above and to correspondence between this Office and both TUSLA and the applicant on the matter. I have also examined the records at issue.

Scope of the Review

I have examined the record to which partial access was granted with redactions. The record was heavily redacted. While TUSLA redacted the information from the record under section 37 of the Act, which is concerned with the protection of personal information relating to third parties, I am satisfied that none of the redacted information falls within the scope of the applicant’s request. It does not in any way relate to the applicant’s social media pages. As such, I do not propose to consider this record further.

Accordingly, this review is concerned with whether TUSLA was justified in refusing access to one record under section 31(1)(b) and whether it was justified in refusing to grant access to any additional relevant records on the ground that no further relevant records exist or can be found.

Preliminary matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, as previously explained to the applicant, the remit of this Office does not extend to examining the manner in which FOI bodies performs their functions generally, to investigate complaints against FOI bodies, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This review is confined to the matters identified above.

Secondly, while I am required under 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 or matter, that if it were included in a record, would cause the record to be exempt. This constraint means, that in the present case, the extent of the reasons that I can give for part of my decision is somewhat limited.

Finally, in correspondence with this Office, the applicant requested information and answers to numerous questions. It is important to note that 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.

Analysis and Findings

Section 31(1)(b)

Section 31(1)(b) provides for the mandatory refusal of a request if the record sought is such that the FOI body knows or ought reasonably to have known that its disclosure would constitute contempt of court. The provision is not subject to a public interest balancing test.

In its submissions to this Office, TUSLA explained that proceedings were initiated by a third party against TUSLA in relation to the transition of a child in foster care to pre-adoptive placement. It said the in camera rule was applied due to the proceedings applying to a minor and the deeply sensitive and confidential process of the adoption procedure.

It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The in camera rule applies to proceedings where there is a statutory requirement that such proceedings are held in private or otherwise than in public. It applies to certain proceedings including certain family law proceedings and certain proceedings involving minors. In many cases the requester seeking access to the records may have been a party to the in camera proceedings, but the identity of the requester is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).

As outlined above, section 25(3) of the FOI Act requires me to take all reasonable precautions to prevent disclosure of information contained in an exempt record. Notwithstanding that, I think it appropriate to describe the record as correspondence TUSLA received from its solicitors describing a matter it intended to raise during the course of the in camera proceedings.

In his application for review, the applicant argued that he was not a party to any proceedings and that “TUSLA attempted to initiate proceedings which were refused by the judge”. He argued, therefore, that there was no contempt.

Having regard to the contents of the record, I accept that in camera proceedings were in being when the record at issue was created and I find that the record contains information relating to those proceedings.  I find that section 31(1)(b) of the FOI Act has been appropriately applied in this instance.

Do other records exist?

In his application for review to this Office, the applicant suggested that other relevant records should exist. 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 miscellaneous 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.

This Office put a number of questions to TUSLA regarding the searches that it carried out. In response, TUSLA said that the applicant is the son of a foster parent and, as such, there are a large number of files across two of TUSLA’s service areas. It noted that there are no files directly relating to the applicant, although there are sporadic references to him as the foster parent’s son.

TUSLA said that all manual files held by Dublin North Fostering Services and National Adoption Services were extensively searched page by page by numerous staff for any reference to the applicant in the context of the scope of the request. The emails of the National Manager of Adoption Services were also searched and extensive searches were conducted across both services to ascertain that no relevant records were held other than those considered in the request.

TUSLA noted that the applicant had received records pertaining to himself up to October 2019 and these records were examined again to ascertain whether there were any further references regarding his social media contained in these records. The Business Manager for Service Director located a further 10 records regarding the applicant from the date of his previous request, but none fell within the scope of the request. Within National Adoption Services, four members of staff, which included the National Manager of Adoption Services, Principle Social Worker Adoption Services, FOI Manager Adoption Services and the Freedom of Information National Manager, examined each file for reference to the applicant and his social media. TULSA said that these were time consuming, difficult and arduous tasks as there are numerus files and only sporadic references to the applicant within the records. Nevertheless, TUSLA said that it examined each individual record within these files to ensure a full and comprehensive search took place.

In response to specific questions around social media activity, TUSLA acknowledged that it does hold additional records containing social media references but that those records were created by third parties. TUSLA therefore considered these records to be outside the scope of the applicant’s request. I agree. 

TUSLA also noted that it’s legal representatives would have managed aspects of the case and so the Office of Legal Services in TUSLA and TUSLA’s legal representatives were contacted in relation to the searches but no records that directly referenced the applicant were identified. TUSLA stated that there were no other records of the applicant’s social media nor any reference to the applicant’s social media pages.

It is, in essence, TUSLA’s position that no further relevant records exist apart from those already identified.  It is important to note that the FOI Act is concerned with access to records held by public bodies.  If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist based on his or her own views of the public body in question.

Based on the submissions outlined above, I am satisfied that TUSLA has carried out all reasonable searches for any relevant records and I find that section 15(1)(a) applies in this instance.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA’s decision to refuse access to one record it identified as relevant to the applicant’s request for records relating to his social media pages under section 31(1)(b) of the FOI Act and to refuse access, under section 15(1)(a), to any further relevant records on the ground that no further relevant records exist or can be found.

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