Whether Tusla was justified in its decision to withhold, under section 37(1) of the Act, certain third party personal information from records relating to a referral made by a GP concerning the applicant’s family

10 August 2021

Background

In October 2019, the applicant was notified by Tusla that it had received a referral from a named GP in relation to his family. The notification informed the applicant that following a screening of the information contained in the referral, it would not be carrying out an initial assessment with his family. On 11 November 2019, the applicant sought access to all records held by Tusla relating to the referral.

On 19 November 2020, Tusla part-granted the request and provided the applicant with two sets of records, some of which it redacted in full or in part under sections 37(1) and 37(7) of the FOI Act. On 12 December 2020, the applicant sought an internal review of that decision. Among other things, he said he wanted to know who had initiated and reported concerns. On 6 January 2021, Tusla affirmed its original decision on the request. The applicant sought a review by this Office of the Tusla’s decision on 26 January 2021.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between Tusla and the applicant as set out 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.

Scope of Review

As outlined above, Tusla identified two sets of records coming within the scope of the review, one for each of his children and referred to as NCCIS 1 and NCCIS 2. During the review, this Office queried why some of the information on one of the files appeared to have been withheld when it was released from the other file. In response, Tusla acknowledged there was a significant overlap between both sets of records and confirmed that pages 2-5, 7-11 and 14-23 on NCCIS 2 were duplicates of records on NCCIS 1, save for the names and addresses. It said, therefore, that the substantive information on the records had been provided to the applicant in the release of records on NCCIS 1.  It said it is not standard practice to send duplicate records to requestors. 

Tusla also explained that an inconsistency between both sets of records where the page numbers and records do not correspond was mainly due to the manner in which the records had printed from its system.  Moreover, a letter, numbered 12 on NCCIS 2, had not been included on the file NCCIS 1 and Tusla explained that when it was compiling both sets of records, this letter was only present in records on NCCIS 2. It explained that while it is customary for a social worker to clone or duplicate records to each file, it did not do so here as this would mean altering the records. Nevertheless, Tusla confirmed it had refused this record under section 37(7) in NCCIS 2 and therefore, the same exemption would likely have applied if it was present on the other file. 

Tusla further stated that as it had previously provided the applicant with the name of the GP who made the disclosure, it would release the GP’s name that had previously been withheld from records 10, 12 and 14 in NCCIS 1.

For the sake of clarity, on 29 June 2021, Tusla provided the applicant with fresh sets of records from both files and accompanying schedules that highlighted the overlap between the two sets. In referring to the records at issue, I have adopted the numbering system used by Tusla in those revised schedules.

Accordingly, this review is concerned solely with whether TUSLA was justified in its decision to withhold, under section 37(1) of the Act, information from the records referred to in schedules NCCIS 1 and NCCIS 2, relating to a referral made to TUSLA concerning the applicant’s family.

Preliminary Matter

In correspondence with this Office, the applicant expressed concerns about the fact that he received notification of the referral unexpectedly and that this is contrary to his understanding of the process that he believes should have been followed. It is important to note that this Office has no role in examining the administrative actions of Tusla in the performance of its administrative functions.

It is also important to note 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 records where the Act requires a consideration of the public interest.

Analysis and Findings

Section 37(1) 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.

Having examined the information at issue, I am satisfied that it comprises personal information about an individual or individuals other than the applicant or his children or information that could reasonably be described as joint personal information relating to the applicant and/or his children and another individual or individuals. Accordingly, I find that section 37(1) applies to the information in question.

Section 37(2) sets out certain circumstances in which section 37(1) does not apply.  I am satisfied that none of the circumstances identified at Section 37(2) arise in this case. Furthermore, section 37(5) of the FOI Act 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 be to the benefit of the person to whom the information relates.

I find that section 37(5)(b) does not apply in this case. As to whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the third party individual or individuals to whom the information relates. 

In considering where the balance of the public interest lies, 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, 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 by granting access to the majority of the information contained in the records at issue, Tusla has sought to enhance its accountability and transparency in relation to its handling of the referral relating to the applicant’s family whilst seeking to protect the privacy rights of third parties. It is also important to note that the release of records under FOI is, in effect, regarded to 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 third parties. 

In conclusion, therefore, I find that Tusla was justified in its decision to withhold, under section 37(1) of the Act, information from the records referred to in schedules NCCIS 1 and NCCIS 2, relating to a referral made to TUSLA concerning the applicant’s family.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Tusla to withhold, under section 37(1) of the Act, certain information from records relating to a GP referral made concerning the applicant’s 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