Whether TUSLA was justified, under section 37 of the Act, in refusing access to certain information contained in two files relating to the applicant’s daughters

15 February 2021

Background

On 5 August 2020 the applicant submitted a request to TUSLA for records relating to a meeting he and his two daughters had with TUSLA and referral documents from a named GP. On 10 September 2020, TUSLA decided to part-grant the request.  It granted access to two files of records, redacting certain information under section 37 on the ground that release of the information concerned would involve the disclosure of personal information relating to third parties, other than the applicant and his daughters.

On 16 October 2020, the applicant sought an internal review of that decision, stating that he required the withheld information in order to protect his children.  On 9 November 2020, TUSLA affirmed its original decision. 

The applicant sought a review by this Office of TUSLA’s decision on 12 November 2020, arguing that the withheld information ought to be released under section 37(2)(e), which provides for the grant of access to personal information where disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.  He also provided background detail in relation to the matter.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting the review, I have had regard to the correspondence between 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 had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the page numbering system used by TUSLA when processing the applicant’s request.

Scope of the Review

The scope of this review is concerned solely with whether TUSLA was justified, under section 37, in withholding certain information from the following pages of records on two files relating to the applicant’s daughters:

File 1: Pages 1, 2, 4, 5, 6, 7, 8, 10, 11, 13, 24, 25, 27, 32, 34, 35, 36, 38, 39, 41, and 42

File 2: Pages 2, 4, 5, 6, 8, 9, 11, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 34, 35, 38, and 39

Preliminary Matters

Before I consider the substantive issue arising in this case, I wish to make a number of preliminary comments.  

Firstly, 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 nature of the records or the reasons for my findings in this case are necessarily limited.

Finally, I wish to note that, although the page numbers differ, there is considerable duplication of records between the two files, as there is a separate file for each daughter.

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. 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).

Section 2 of the FOI Act defines the term “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 the body as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (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 to individuals other than the applicant or his daughters or information relating to the applicant and/or his daughters that is inextricably linked to the personal information of other identifiable individuals, i.e. joint personal information.  In the circumstances, I find that section 37(1) applies to all of the withheld information.  

Section 37(2) sets out certain circumstances in which section 37(1) does not apply, including where disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual (section 37(2)(e) refers).   

The test to be met in section 37(2)(e) is a high one. The risk to life or health must be serious and must be imminent. It must also be shown that disclosure of the information at issue is required in order to avoid such harm. A clear link must therefore be established showing that disclosure of the information is necessary for such purposes.

While the applicant argued that he requires access to the information at issue to protect his children, he offered no explanation as to why disclosure of the information would be required in order to avoid a serious and imminent danger to the life or health of his children, nor is it apparent to me that its release would be required for that purpose. I am not satisfied that section 37(2)(e) applies in this case, nor do I consider that any of the other provisions of section 37(2) apply.

Section 37(5) provides that a request that would fall to be refused under section 37(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 benefit the person to whom the information relates.  As no evidence has been presented to this Office to suggest that the release of the information at issue would benefit the third parties concerned, I find that section 37(5)(b) does not apply. 

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”). It is noted 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 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 in both judgments 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 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 daughters while simultaneously seeking to protect the privacy rights of other parties.  The information at issue is of an inherently private and sensitive nature. 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 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 FOI Act, I hereby affirm the decision of TUSLA to refuse access, under section 37(1), to certain information contained in the two files relating to the applicant’s daughters.

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