Whether TUSLA was justified, under sections 37(1) and 42(m) of the Act, in refusing access to certain information contained in records held by it relating to the applicants and their family

20 January 2021

Background

Following correspondence between the parties, the applicants in this case submitted a request to TUSLA on 8 May 2020 for files relating to their family from January 2019 to the date of their request.

In a decision dated 8 July 2020, TUSLA identified six files of records as coming within the scope of the request, four files from its Social Work Department and two files from its Education Support Service/Educational Welfare Office (TESS/EWO), comprising 625 pages in total. It decided to part-grant the request, with the redaction of personal information relating to third parties under section 37 of the FOI Act, and information that would reveal the identity of the person(s) who provided information in confidence to TUSLA about the family, under section 42(m) of the Act. It released 500 pages in full and 111 pages in part, and it refused access to 14 pages in full.

The applicants sought an internal review of that decision, following which TUSLA affirmed its original decision. On 8 September 2020, the applicants sought a review by this Office of TUSLA’s decision.

I have now decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicants and TUSLA as outlined above and to communications between this Office and both the applicants and TUSLA on the matter. I have also had regard to the content of the records at issue. In referring to the records at issue, I have adopted the numbering system used by TUSLA when processing the request.

Scope of this Review

When processing the request, TUSLA included a significant number of records in its decision that were created before January 2019. As outlined above, the applicants specified that they were seeking access to records from January 2019 to the date of their request only. This Office is not in a position to consider the release of records that were not captured by the original request. As such, the following records, which pre-date January 2019, are not covered by this review:

File 1

Pages 14-18, 25, 28, 29, 38, 46, 49, 93, 96, 102,104, and 145-147.

File 2

Pages 36, 69-72, 79, 80, 84, 154, 157, 163, 165, 169, 262(in-part) and 263.

File 3

Pages 10-13, 20, 21, 46, 49, 55, 57, 60, 66, 67 and 82-84.

File 4

Pages 7-10, 12, 45, 47, 69 and 70.

Accordingly, the scope of this review is concerned solely with whether TUSLA was justified, under sections 37(1) and 42(m), in refusing access to the remaining records to which access was refused either in whole or in part.

Preliminary Matters

Before I address the substantive issues arising, I would like to make some preliminary points. First, section 18(1) of the Act provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.  Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Secondly, 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. As a consequence, the descriptions I can give of the information that has been withheld or the reasons for my findings in this case are necessarily limited.

Finally, for the benefit of the applicant, as TUSLA noted in its decision, there is considerable duplication in the records on each file, as there is a separate file for each member of the family.

Analysis and Findings

Section 42(m(i)

The following records, or parts thereof, were refused by TUSLA under section 42(m)(i) of the Act, File 1: pages 81 and 82, File 2: pages 4, 50, 117, 142, 143 and 191, File 3: pages 34 and 35, File 4: pages 23, 24 and 50.

Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession.  In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. The second is that the information supplied must have been provided in confidence, while the third is that the information supplied must relate to the enforcement or administration of the law.

First Requirement

Having examined the records, I am satisfied that release of the information could reasonably be expected to lead to the revelation of the identity of the person(s) who supplied the information. I am satisfied, therefore, that the first condition has been met.

Second Requirement

The second requirement is that the provider of information must have provided that information in confidence. 

It is arguable that if people providing information to TUSLA in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. I accept that without an assurance or understanding that information being provided is provided in confidence, such persons may be reluctant to provide this type of information in the future. In the circumstances arising in this case, I am satisfied that the information whose disclosure could reasonably be expected to lead to the revelation of the identity of the supplier was provided in confidence. I find that the second requirement is met.

Third Requirement

The third requirement is that the information provided relates to the enforcement or administration of the law. In its submission to this Office, TUSLA explained that it operates under the Child and Agency Act 2013 and the Child Care Act 1991. TUSLA said that the information provided contained child protection concerns and therefore when it was notified of these concerns an investigation was initiated under the aforementioned Acts. Therefore, I am satisfied that the third requirement is met in this case. 

Having found that each of the requirements are met, I find that section 42(m)(i) of the FOI Act applies and that TUSLA was justified in refusing access to the information at issue. 

Section 37 – Personal Information

TUSLA refused the following records, or parts thereof, under section 37 of the Act on the grounds that they contain personal information of individuals other than the applicants:

• File 1: pages 1-3, 85, 132, 133, 134, 136 and 138.
• File 2: pages 41, 44, 84, 93, 105, 115, 125-127, 146, 179, 183, 184, 191, 199, 206, 215, 218, 226, 231, 237, 238, 242, 246-248, 251-253, 255 and 262(in-part).
• File 3: pages 2, 38, 70, 71, 73, 75, 76 and 82(in-part).
• File 4: pages 2, 27, 39, 50, 56, 57, 59, 60, 61, 62 and 69(in-part).
• File 5: pages 6 and 23.
• File 6: pages 5, 9, 17, 18 and 28.

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 (commonly known as joint personal information).

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information, including (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, and (xiv) the views or opinions of another person about the individual.

Having examined the withheld information at issue, I am satisfied that it comprises either personal information relating solely to individuals other than the applicants or their children, or personal information relating to the applicants and/or their children that is inextricably linked to personal information relating to other identifiable individuals, i.e. joint personal information. I am satisfied that the release of any or all of the redacted information would involve the disclosure of personal information relating to individuals other than the applicants or their children. In the circumstances, I find that section 37(1) applies to all of the withheld information. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5).

Subsection (2) provides that subsection (1) does not apply in certain circumstances. Having examined the records, I am satisfied that the circumstances identified at section 37(2) do not arise in this case.

Subsection (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.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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 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 applicants and their children while simultaneously seeking to protect the privacy rights of other parties. I am also conscious of the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the 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 remaining withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates. Accordingly, 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 FOI Act, I hereby affirm the decision of TUSLA to refuse access, under sections 37(1) and 42(m), to certain information contained in the records it holds relating to the applicants and their family.

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