Whether TUSLA was justified in refusing access, under section 37 of the FOI Act, to a copy of a referral that was sent to TUSLA about the applicant and her children

22 October 2021

Background

In an FOI request to TUSLA dated 21 January 2021, the applicant sought access to a copy of a referral that was sent to TUSLA about her and her children. TUSLA refused the request under section 37 of the FOI Act. The applicant sought an internal review of that decision on 12 May 2021, following which TUSLA affirmed its refusal of the request. On 11 August 2021, the applicant applied to this Office for a review of TUSLA’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude the review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between TUSLA and the applicant and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the record at issue.

Scope of the review

The scope of this review is confined to whether TUSLA was justified in its decision to refuse access, under section 37 of the FOI Act, to the referral letter sent to TUSLA relating to the applicant and her children.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, subject to the other provisions of the FOI Act, section 13(4) 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 record at issue, 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.

Second, although I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the record at issue and its content is severely limited.

Thirdly, 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 37(1)

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.

The record at issue in this case is a note of a referral that was made to TUSLA concerning the applicant and her children. Having examined its contents, I am satisfied that it comprises either personal information relating solely to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to personal information relating to other identifiable individuals, i.e. joint personal information. I am satisfied that the release of the record would involve the disclosure of personal information relating to individuals other than the applicant. Accordingly, I am satisfied that section 37(1) applies to the record. However, that is not the end of the matter as section 37(1) is subject to a number of the other provisions of section 37.

Section 37(2)

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.

Section 37(5)

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.

Having regard to the nature and contents of the record, 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.

The disclosure of the record at issue would, in my view, involve the disclosure of personal information of all parties identified in the record of an inherently private and sensitive nature, relating to concerns about the welfare of children. It is important to note 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 third parties.

Section 37(8)

Section 37(8) provides that the Minister for Public Expenditure and Reform may provide by regulations for the grant of a request where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The Regulations in question are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 2018 of 2016). They provide for a right of access to personal information relating to an individual who has not attained

full age by his/her parent or guardian where access to those records would, having regard to all the circumstances, be in the individual’s best interests.

The Minister has published guidance in relation to access to records by parents under section 37(8) and the related Regulations (i.e. Central Policy Unit Notice 25, available on www.foi.gov.ie). Under section 48(3) of the Act, FOI bodies must have regard to such guidance when performing their functions under the Act.

The guidance provides that the factors to be considered in cases where the question of access to personal information of minors are whether the minor would consent to the release of the material, whether release of the material would damage the minor in some way, and whether the records are held in the minor's own right.

It is relevant to note that the Supreme Court held in the case of McK v. The Information Commissioner [2006] IESC 2, available at www.oic.ie,that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. However, the right of access is not automatic. While I am constrained by section 25(3) from expanding on my reasoning, it is not clear to me that the release of the record at issue is in the best interests of the children in this case. In any event, the Regulations do not provide for the release of personal information of a minor to a parent where that information is inextricably linked with personal information relating to any other party. Having regard to the contents of record, I find that the applicant does not have a right of access to it under the 2016 Regulations.

In conclusion, therefore, I find that TUSLA was justified in refusing access, under section 37(1) of the Act, to the record at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA’s refusal of the referral letter under section 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.

Stephen Rafferty
Senior Investigator