Whether TUSLA was justified in refusing access to records relating to the applicant and a visit by TUSLA, under sections 31(1)(a) and 37 of the FOI Act

23 August 2021

Background

On 23 November 2020, the applicant made an FOI request to TUSLA for all records relating to herself and her children. On 1 March 2021, TUSLA decided to grant access to some records and refuse access to the remaining records on the ground that they were exempt under sections 31(1)(a) and 37 of the FOI Act. On 14 March 2021, the applicant applied for an internal review. She said that she requested all information on file relating to her and her children, including all details surrounding a visit by TUSLA to her home on a specified date. On 1 April 2021, TUSLA issued its internal review decision, in which it affirmed its original decision. On 26 April 2021, the applicant applied to this Office for a review of TUSLA’s decision.

In conducting my review, I have had regard to the correspondence between the applicant and TUSLA as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by TUSLA for the purposes of this review.

Scope of the Review

The scope of this review is confined to whether TUSLA was justified in refusing access to the records under sections 31(1)(a) and 37 of the FOI Act. TUSLA identified three files of records, numbered from 1-76, 1-339 and 1-525. During the review, TUSLA issued a revised schedule.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, and subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest. I should also note that this Office has no role in how TUSLA performs its functions generally.

Secondly, with certain limited exceptions (e.g. section 37(2), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Finally, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. 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.

Analysis and Findings

Section 31(1)(a) – Legal Professional Privilege

TUSLA claims that certain records are exempt under section 31(1)(a) of the FOI Act. Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

• 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
• 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).

The Commissioner has considered records that may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications, which was for the purpose of giving or receiving legal advice. In Case 020281 the former Commissioner referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]: "Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R., 246, CA.], ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach." The Commissioner has adopted this approach and takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

I have examined the records. I am satisfied that some records disclose confidential communications made between TUSLA and its legal advisers for the purpose of obtaining and/or giving legal advice and form part of a continuum of correspondence that results from the original request for advice. Some records also disclose confidential communications between TUSLA and its legal advisers, the dominant purpose of which is the preparation for contemplated/pending litigation. I therefore find that TUSLA was justified in refusing access to the records listed below under section 31(1)(a) of the FOI Act.

• File 1-76: 1, 2, 8, 9-19, 21, 22-24, 26-40, 42, 43-45, 48-53, 54, 55-57, 60, 66-67
• File 1-339: 16-17
• File 1-525: 348-349, 356-357, 363-366, 385-386, 394-395, 421-427, 429-433, 435-436, 438-445, 447-476, 477-479, 480 (solicitor’s email only)

Section 37 - Personal information

Sections 37(1) and 37(7)

TUSLA says that the remaining records are exempt under section 37 of the FOI Act. Section 37(1) provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: “(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual”.  The Commissioner accepts that an individual may not be named in a record, yet may still be identifiable.

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

The records concerned disclose the names of individuals other than the applicant and the nature of certain allegations made about an individual other than the applicant and details of the person who made the allegation. I am satisfied that section 37(1) applies to this information. In theory, one could extract certain words and phrases which relate solely to the applicant. I have considered whether this would be practicable in the circumstances. However, those words and phrases appear in the context of information relating to individuals other than the applicant. Having regard to section 18 of the FOI Act, I conclude that to provide redacted copies of this information would be to provide misleading records. I find that section 37(1) applies to the records. This finding is subject to other provisions of section 37, which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. That is to say, (a) it does not solely relate to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information 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) - The Public Interest

In considering section 37(5), I believe that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

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 [2020] IESC 5. The Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, 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 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 is also relevant to note that release of the information must effectively be regarded as release to the world at large, as set out above.

The applicant provided this Office with a detailed background to her FOI request and her reasons for seeking access to the records. I do not consider it appropriate or necessary to outline all those details here. In brief, the applicant wishes to obtain documentation relating to a visit by TUSLA to the family home and the process around TUSLA’s decision to make that visit. The applicant says that if correct procedures were not followed, she has grounds for a complaint, but in the absence of information being released, she cannot see what procedures were followed or ignored. She says that it is very much in her family’s interest to know this information.

The applicant’s submissions seem to me to reflect her private interest in obtaining access to the records. I acknowledge the importance of this information to the applicant and I accept that disclosing the records would give further insight into TUSLA documentation relating to her family and the visit concerned. However, this does not mean that there should be no protection of privacy rights. It is not for this Office to determine the appropriateness or otherwise of TUSLA’s actions or to determine that personal information should be provided to the applicant in the public interest under section 37(5)(a) of the FOI Act, in order to provide the applicant with further documentation from TUSLA.

I accept that there is a public interest in knowing how TUSLA carries out its functions. However, having regard to the content of the withheld information, I do not consider that there is a public interest in favour of its release that, on balance, outweighs the public interest in upholding the privacy rights of the individuals to whom it relates. I find that section 37(5)(a) does not apply and that TUSLA was justified in refusing access to the remaining records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm TUSLA’s decision to refuse access to the records under sections 31(1)(a) and 37(1) of the FOI Act.

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.

Deirdre McGoldrick

Senior Investigator