Whether TUSLA was justified in refusing access, under section 37(1) of the FOI Act, to certain information and records relevant to the applicant’s request for Mother and Baby Home records, and whether it was justified, under section 15(1)(a) of the Act, in refusing access to any further records on the ground that no further relevant records exist or can be found

 

OIC-112083-S6Z6C6

 

Background

 

The applicant was born in the early 1970s in a Mother & Baby Home. While she was placed with a family with the intention that they would adopt her, the adoption was never completed and she was returned to her mother after a few months. On 1 February 2021, she made an FOI request to TUSLA for a copy of the file containing the date her mother entered and left the named Mother & Baby Home and a copy of the adoption documentation signed by her mother. She said that all information from her mother’s chart should be made accessible to her.

 

In a late decision dated 14 June 2021, TUSLA decided to part-grant the request. Of the 68 records it identified as relevant to the request, five were released in full, 32 were released with some information redacted under section 37(1) of the FOI Act, and 31 were refused. Of the records that TUSLA refused to release, two were withheld under section 15(1)(d) of the FOI Act on the grounds that the records were already in the public domain, and the remaining 29 were withheld under section 37(1) of the Act (personal information of third parties).

 

The applicant sought an internal review of that decision on 20 June 2021, wherein she argued that many of the redactions in the records related to persons who are now deceased and that deceased persons do not have privacy rights. She stated that she was seeking a full copy of the file with no redactions. In a late internal review decision dated 11 August 2021, TUSLA varied its original decision. Some of the records that had been withheld were released either in full or with redactions, including those records refused under section 15(1)(d) which were released in full. Three records that had been released with redactions were released in full. The overall impact of the varied decision was that of the 68 records identified, 12 were released in full, 40 were released with some information redacted, and the remaining 16 records were withheld. TUSLA explained that the redactions and withheld records contained personal information relating to third parties and that it was refusing to release them in accordance with section 37(1) of the FOI Act. 

 

On 25 August 2021, the applicant sought a review by this Office of TUSLA’s decision, wherein she stated that she was not satisfied that all records had been located and that she was seeking the release in full of the records that had been identified.

 

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the written submissions made by TUSLA and by the applicant, to the correspondence between the parties as summarised above, and to all further communications between the parties and this Office. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

 

Scope of Review

 

In her submission to this Office, the applicant clarified that she was not seeking the release of any personal information concerning the family that had commenced the process of adopting her or information concerning other children in the Mother & Baby Home. Having carefully examined the records, this excludes records 3, 24, 26, 27, 31, 32, 34-42, 62 -65 from the scope of this review.

 

I note that during the course of the review, the applicant said that a witness signature was redacted from record 42, but it was not redacted in the copy TUSLA provided to this Office. TUSLA confirmed that it did not intend to redact the witness details and would forward a revised copy of the record to the applicant.

 

In her submission to this Office, the applicant also referred to an FOI request made in 2007 for records relating to her time in the named Mother and Baby Home following which she stated she received 35 pages of records, many of them redacted. She stated that she was distressed to discover that more records existed, referring to the 68 records identified through this current FOI request. She stated that she wished her entire file to be released and referred to additional records that she believed to be held by TUSLA. While this review is confined to the 2021 FOI request, the question of whether TUSLA identified all relevant records coming within the scope of that request arises. Section 15(1)(a) of the Act provides for the refusal of records that cannot be found or do not exist.

 

Accordingly, this review is concerned with (i) whether TUSLA was justified in refusing to release, in whole or in part, records 7, 22, 23, 28-30, 47, 48-49, 50, 51, 52, 53-60, and 66-68 under section 37(1) of the FOI Act, and (ii) whether it was justified, under section 15(1)(a) of the Act, in refusing access to any further records on the grounds that no further relevant records exist or can be found.

 

 

Preliminary Issues

 

Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, as outlined above, TUSLA’s decision on the FOI request and subsequent internal review decision were both issued outside the timeframes specified in the FOI Act. In a letter to this Office explaining the delays, TUSLA stated that in February 2021 it received a database of records from the Mother & Baby Homes Commission following which it received an unprecedented number of requests into its National Adoption Service which led to a backlog of requests. It stated that this increase in volume, combined with the impact of Covid-19 restrictions, affected its ability to retrieve, scan and review files within the statutory timelines. These delays were further exacerbated by the cyber-attack on 14 May 2021 which severely impacted the agency’s work. TUSLA stated that it regretted the delays caused by these unprecedented circumstances.

 

Secondly, I would like to acknowledge how important it is to the applicant to have access to further information about her early life. However, I cannot direct TUSLA to release further records to her on this basis. This is because section 13(4) of the FOI Act requires me to disregard any reason given for making the FOI request, except in so far as those reasons reflect what might be regarded as public interest factors in favour of release of the information, where the Act requires a consideration of the public interest.

 

Thirdly, TUSLA has granted partial access to some of the records. I acknowledge that this was intended to ensure that the applicant would get as much access to information concerning her family history as possible. I appreciate the importance that the applicant may attach to getting further access to even brief excerpts of any of the withheld records. Section 18  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.

 

Fourthly, section 25(3) of the FOI Act requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I give in describing the withheld records.

 

Finally, 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.

 

 

Analysis and Finding

 

Section 37(1)

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, including personal information relating to a deceased individual. 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). In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

 

Section 2 of the FOI Act defines 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 that body as confidential”. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of (a) or (b), must be considered personal information for the purposes of the Act, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual. Where information can be classified as one of the14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

 

Paragraph (I) of section 2 excludes the names of individuals who hold or held positions as staff members of public bodies from the definition of personal information. 

 

I have carefully examined each of the records at issue. As I have noted above, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the records at issue. However, I do not believe that I am in breach of section 25(3) by providing the following descriptions and analysis:

 

• The redacted information in records 7, 22 and 23 comprises personal information relating to the applicant’s mother.
• Records 28 and 29, which were released in part, contain a “progress sheet” from a named adoption society, essentially a checklist of progress on the adoption application. The applicant stated that she wished all of the redactions on this progress sheet to be removed, that they consist of dates and names of employees and should not be considered personal information of third parties. Having examined these records, I note that the redacted information contained in the column on the right hand side of the records (from “Date of Approval” to “Amended Baptismal Certificate sent to Adopters”) pertains to another child. The remaining redacted information consists of dates and reference numbers relating to the prospective adoptive family’s application for adoption. I consider all of this to be personal information relating to individuals other than the applicant. None of the redactions are of employee names.
• In relation to record 30, the applicant stated that she had a recollection of being in care and assumed that this was why this particular record was on the file and asked for it to be released in full. The part of the record that was released to her refers to the applicant being in a named children’s home for a specified short period. However, the redacted information in this record refers to parties other than the applicant, and in fact contains no reference to the applicant. I am satisfied that the withheld information is personal information relating to individuals other than the applicant.
• The withheld information in each of the records from 47 to 60 consists of personal information relating to the applicant’s mother and/or father. I note that record 57 is a duplicate of record 56.
• The redactions on the left hand side of record 66 (under “Mother’s Card”) contain personal information relating to the applicant’s mother. However, the redactions on the right hand side (between “Legitimacy” and “Date of Discharge”, and underneath “Placed for Adoption/Boarding Out”) do not contain any personal information relating to third parties.
• All of the redacted information on record 67 contains personal information relating to the applicant’s mother and the prospective adoptive family.
• There is one redaction on record 68. Under the heading “Miscellaneous”, there is a checkbox beside “Reports by [NAME]” and the name is redacted. Following enquires made by this Office, TUSLA indicated that as it had not been able to establish if the named individual was a member of the staff of a public body, it redacted the name under section 37(1). It seems to me that even if the individual was not a member of the staff of a public body, disclosure of the name, in the context in which it is contained within the record, would not involve the disclosure of any personal information about the individual. In the particular circumstances, I find that the redacted information is not personal information for the purposes of the Act.
• The applicant raised concerns with this Office that names of government employees had been redacted, incorrectly, by TUSLA throughout the records. Having reviewed the records, I am satisfied that this is not the case.

 

Having carefully considered all of the information that was withheld, I am satisfied that, with the exception of the information redacted from the right hand side of record 66 and the name redacted from record 68 as described above, its release would involve the disclosure of personal information relating to individuals other than the applicant. To the extent that any of the withheld information can be described as also relating to the applicant, I am satisfied that such information comprises joint personal information relating to the applicant and other parties and that the release of that information would involve the disclosure of personal information relating to those third parties. I find that section 37(1) applies to these records.

 

On the other hand, I find that section 37 does not apply to the redactions on the right hand side of record 66 (between “Legitimacy” and “Date of Discharge”, and underneath “Placed for Adoption/Boarding Out”) or to the name redacted from record 68 and while I appreciate that the disclosure of the information will be of no tangible benefit for the applicant, I direct that the relevant information be released. 

 

Section 37(2)

Section 37(1) is subject to the other provisions of the section. Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue 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.

 

On the matter of the applicability of section 37(2)(b), I note that TUSLA said in its submissions to this Office that it had discussed the FOI request with the applicant in a telephone conversation on 30 June 2021 concerning the possible exemption of information relating to her birth mother. It said it informed the applicant that she could obtain consent and provide TUSLA with this and contact details in order for additional information within the records to be released. It said the applicant confirmed that this avenue would not be an option and that her mother would not consent.

 

 

Section 37(5)

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 be to the benefit of the person to whom the information relates. There is no evidence to suggest that the persons to whom the information relates would benefit by its release and 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 releasing the information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. 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.

 

In considering 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 also 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. 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.

 

As noted above, I am required to disregard the applicant's reasons for her FOI request. Therefore, I can only take into account the purpose for which she seeks this information insofar as it could be construed as a public interest. The applicant has stated that she has suffered harm by being denied access to information about her original identity and it has had a negative and lasting impact on her life. She stated that she needs transparency and healing and to be able to piece together the early jigsaw of her life. In particular, it is very important to her to have access to the date that her mother left the Mother and Baby Home. I have a lot of sympathy for the applicant and her position. However, I am bound to treat her interest in seeking access to information about her early life as a private rather than a public interest.

 

TUSLA stated that it endeavoured to strike a balance between making as much information as possible available to the applicant while seeking to protect the privacy rights of the relevant third parties. It stated that it was regrettable that no further information in this regard could be released, and that as an agency it understands the distress that this can cause.

 

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 relates. In conclusion, therefore, I find that TUSLA was justified in its decision to refuse access to personal information contained in the records at issue, under section 37(1) of the Act.

 

Section 15(1)(a)

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

 

The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

 

In its submissions to this Office, TUSLA stated that it was satisfied that all records held by it relating to the applicant have been located and listed in the Schedule of Records. It described the searches carried out, the details of which were sent to the applicant by the Investigator. In summary, it explained that records held by it relating to historical adoptions could potentially be held on two databases and/or manually held records transferred from Mother and Baby homes. All such records were transferred to the Mother and Baby Home Commission, and collated onto one database which was then transferred back to TUSLA when the Commission completed its report.

 

TUSLA provided this Office with a copy of its record search template which noted that all records relevant to the applicant had been digitised and uploaded to its electronic database. It stated that it carried out thorough searches, including using a reference number retrieved from the Mother & Baby Home Commission database as well as searches for the named Mother & Baby Home and the named adoption society. The applicant had pointed to particular references in records which she felt suggested the existence of further records. For example, record 29 refers to “Confidential records sealed on file” and then a date is given. TUSLA stated that historical adoption files are often incomplete, with minimal records held on file. Within a file there can also be other documents referenced, or additional reference numbers referred to on records, that are not actually held by TUSLA. TUSLA acknowledged that this can often be a source of both disappointment and additional angst for requesters seeking information relating to their birth history and adoption.

 

Having regard to the nature and extent of the searches conducted by TUSLA, I find that it has taken all reasonable steps to locate relevant records. As such, I find that it was justified in refusing access to any further records under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be found.

 

 

Decision

 

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of TUSLA in this case. I direct release of the following:

 

• Record 66 – the information in the right hand column between “Legitimacy” and “Date of Discharge”, and the information underneath “Placed for Adoption/Boarding Out”
• Record 68 in full

 

I find that TUSLA was justified in refusing access to the remaining information at issue under section 37 of the FOI Act. I find that it was also justified, under section 15(1)(a) of the Act, in refusing access to further records on the grounds that no further relevant records exist or can be found.

 

 

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given. 

 

 

Stephen Rafferty
Senior Investigator