Whether TUSLA was justified in refusing access to records relating to the applicants’ role as foster carers on the basis that sections 15(1)(a), 15(1)(i) and 37 applied

9 December 2021

Background

In a request dated 13 January 2020, the applicants, through their legal representatives, sought access to various records relating to their role as foster carers in an extensive 25-part request.  For the sake of convenience, all references to communications with the applicants in this decision should be taken to include communications with their legal representatives.

Following several exchanges of correspondence between the parties, TUSLA issued its decision on the request on 11 March 2020 in which it part-granted the request, refusing access to certain records or parts of records on the basis that sections 15(1)(a), 15(1)(i) and 37 applied. The accompanying schedule indicated that two parts of the request were granted in full, 11 parts were part-granted with certain information withheld under section 37, and 12 parts were refused in their entirety, two under section 15(1)(a), one under section 15(1)(i), and the remaining nine parts under section 37. 
 
On 5 June 2020, the applicants sought an internal review of that decision, following which TUSLA affirmed its original decision. On 29 July 2020, the applicants sought a review by this Office of TUSLA’s decision.  

During the course of the review, the applicants confirmed that they accepted TUSLA’s position in respect of parts 1, 2 and 7 of the request and that these could be removed from scope. They applicant also indicated that while access to part 10 had been granted (copies of certain TUSLA/HSE policies in place in 2013), some of the records released were not the appropriate records as they were not those in place in 2013. TUSLA subsequently provided copies of the relevant documents to the applicants. TUSLA also released some additional information in the records relevant to parts 6, 12, 21, and 22. It also confirmed that the records relevant to parts 11 and 21 are duplicates, as are the records relevant to parts 12 and 22.  

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 submissions made by the applicants and to the submissions made by the FOI body in support of its decision. I have also had regard to correspondence between this Office and both the applicants and TUSLA, and to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.
 

Scope of Review

As set out above, the applicants agreed to exclude parts 1, 2 and 7 from scope. As also noted above, TUSLA provided the applicant with the records relevant to the appropriate time period for part 10 and therefore this part is excluded from scope.  

In relation to Part 4, four pages of records were identified as relevant to this part of the request including three pages of minutes of a meeting which were released with redactions.  Apart from the first redaction on the second page of the minutes, the other redacted information relates to individuals and families unconnected to the applicants and is therefore outside the scope of this review.  

The records remaining in scope are those relating to parts 3, 8, 9, 13, 15, 16, 19, 20, 23, 24 and 25 which were refused in full; and the information redacted from the records released in response to parts 4, 5, 6, 11, 12, 14, 17, 18, 21 and 22.  Accordingly, this review is concerned solely with whether the TUSLA was justified, under sections 15(1)(a), 15(1)(i) and 37 of the Act, in refusing access, in whole or in part, to the remaining records.
 

Preliminary Matters
 

Before I consider the substantive issues arising, I would like to make a number of preliminary comments. First, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

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 or contents of the records or the reasons for my findings in this case are necessarily limited.

Thirdly, it is important to note that the release of a record 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 a record released under the Act may be put.
 

Analysis and Findings

Section 15(1)(a)
TUSLA refused access to records relevant to parts 3 and 19 of the request under section 15(1)(a) off the Act. During the review, TUSLA revised its position in relation to part 23 and now claims that section 15(1)(a) applies to that part also. The applicants are of the view that there are additional records relevant to part 5, and so I have also considered that part under section 15(1)(a).  

Section 15(1)(a) 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.

Part 3 of the request was for copies of all reviews of the applicants as foster carers undertaken by the relevant agencies between 2003 and 2013, and referred to Standard 17 of the National Standards for Foster Care, 2003 (NSFC, 2003). According to TUSLA, a local action plan decision was taken that such reviews were not conducted in the relevant area at the time. TUSLA also stated that such reviews were encompassed in home visits to the families and incorporated in home visit records. As such, the TUSLA position is that the records do not exist. The applicants were advised of this and in response sought access to the “foster care reviews” that were encompassed in home visits records. Having considered TUSLA’s submission, including information provided on searches conducted for records relevant to the request, I am satisfied that it was justified in refusing access to relevant records under section 15(1)(a).  In so far as reviews may have been encompassed in home visit records, records of home visits are included in records which have been identified as relevant to other parts of the request. Having carefully examined these records and taking account of section 18 of the FOI Act, I am satisfied that it is not practical to isolate any such information from the other parts of the relevant records such that it can be described as reviews of the applicants as foster carers and can be considered for release.  

Part 5 was for copies of correspondence to the applicants after their approval as foster carers which confirmed their suitability to provide foster care for named children. TUSLA identified seven pages of records as relevant to this part of the request and released these pages in redacted form.  The records are the same records identified by TUSLA as relevant to Parts 1 and 2, to which access was also granted in redacted form by TUSLA and which the applicants agreed to remove from scope. The applicants were asked if they also accepted TUSLA’s position in relation to Part 5, given their position on Parts 1 and 2.

In response the applicants indicated that they believed that not all information has been received.  However, they were not in a position to identify any records that they believed had not been identified or to provide any evidence to suggest that additional relevant records exist. In the absence of any indication as to what further records the applicants believe should exist, and in view of the fact that the request was for correspondence to which the applicants were a party, I have no basis on which to find that further relevant records might exist. I am satisfied that section 15(1)(a) applies to this part of the request in respect of any additional relevant records. 

Part 19 was for copies of placement and matching policies for the placement of named persons with the applicants and referred to Standard 8 of the NSFC, 2003 and to the Child Care (Placement of Children in Foster Care) Regulations 1995. In refusing access under section 15(1)(a), TUSLA stated that no matching policies were conducted at the time. It said the process undertaken was in accordance with the NSFC, 2003 but that no specific placement and matching policy was in place.  TUSLA also provided details of steps taken to search for any such policies, including searches of the relevant departments and extensive enquiries with relevant staff.  No such policies were identified.  I am satisfied that TUSLA was justified in refusing access to the records sought under section 15(1)(a).  

Part 23 was for particular statements made to An Garda Síochána(AGS). TUSLA initially refused access to these records on the basis that section 37 applied, in that if the records existed section 37 would apply to the contents. However, TUSLA has since said that these records do not exist on TUSLA files and that the incorrect exemption was claimed. It said that any statements made to AGS would be held by AGS, and that while there are references on TUSLA files to such statements, it does not hold copies of them. TUSLA said it would not be normal practice for such statements to be held on TUSLA files, nor would TUSLA have access to such statements.

The applicants were informed of TUSLA’s revised position. In response, they asked that records relating to interaction with AGS be provided to them. They also stated that they believe the records exist, but that they cannot comment on the form or location. Finally, the applicants referred to the Health Service Executive(HSE) being the statutory body in charge of social care services at the time and enquired about the transfer of records to TUSLA.  All relevant records were transferred to TUSLA when it was established and it is clear from the records identified in relation to the overall request that relevant historic records are available to TUSLA. 

The request made was for statements made to AGS. As such, it is not possible to expand the scope of this part of the request. Having considered the position of TUSLA and reviewed other records relevant to the request, I am satisfied that TUSLA was justified in refusing part 23 of the request under section 15(1)(a).

Section 15(1)(i) 
TUSLA refused access to the records relevant to part 25 of the request on the basis that section 15(1)(i) applied. This part of the request was for copies of all social work files relating to the applicants from the date of their application to become foster carers to the date of the request. 
Section 15(1)(i) provides for the refusal of a request where the request relates to records already released, either to the same requester or a previous requester, where the records are available to the requester concerned. 

According to TUSLA, this part of the request was the subject of a previous request and records were released to the applicants on 30 July 2019.  On further enquiry it emerged that while there was a previous request and decision, not all of the records sought were released to the applicants.  A schedule of over 600 records identified as relevant to the earlier decision was provided to this Office in which it was clear that many of the records had not been released to the applicants in response to the earlier request. In the circumstances, TUSLA was not asked to provide copies of the records relevant to this part of the request. Section 15(1)(i) is not concerned with records that have previously been considered for release but with whether they have been released and are available to the requester.  As many of the records were not released, nor is there any indication that they available to the applicants, I find that section 15(1)(i) does not apply to any of the records or parts of records to which access was refused in response to the earlier request.

In the circumstances I annul this part of TUSLA’s decision and direct it to undertake a fresh decision making process on the records relevant to part 25 that have not previously been released.  However, in so far as the records relevant to this part to which access was refused are also relevant to other parts of this request, TUSLA should have regard to the decision in any subsequent consideration of such records.  

Section 37 Personal Information
TUSLA refused access, under section 37 of the Act, to the records relevant to parts 8, 9, 13, 15, 16, 20, and 24 in full; and to parts of the records relevant to parts 4, 5, 6, 11, 12, 14, 17, 18, 21 and 22. As noted above, TUSLA released some additional information in the records relevant to parts 6, 12, 21 and 22 during the course of the review.  

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 (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (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.

The FOI Act in Section 2 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 definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of an individual, (iii) information relating to the employment or employment history of the individual, and (v) information relating to the individual in a record falling within section 11(6)(a) (which refers to a personnel record – a record relating wholly or mainly to “the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body or his or her employment or employment history or an evaluation of the performance of his or functions…”), and (xiv) the views or opinions of another person about the individual.

Section 2 also states that the definition of personal information does not include certain information relating to an individual who holds or held a position as a staff member of an FOI body.  The information excluded is:

• the name of the individual, 
• information relating to the office or position or its functions,
• the terms upon and subject to which the individual holds/held that office or occupies/occupied that position, or 
• anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions.

This exclusion to the definition of personal information does not deprive staff members of FOI bodies of the right to privacy generally. For example, the Commissioner takes the view that it does not exclude personnel records relating to the “competence or ability of the individual in his or her capacity as a member of staff of an FOI body”. Some of the information relates to staff members of TUSLA such that it falls within section 11(6)(a) of the FOI Act, in particular the records identified as relevant to parts 11 and 21.   

The records or parts of records at issue relate to the applicants, their children and other family members, children who were fostered by the applicants and numerous other third parties, who were in some way connected to the applicants or to the children to whom they provided foster care. Mindful of the provisions of section 25(3), I cannot provide a detailed description of the records. However, I can say that they generally comprise records of the assessment process for the applicants as foster carers, social work records in relation to the applicants and children placed in foster care with them and related records. Having carefully examined the records and having regard to this Office’s approach to section 18, I find that the information at issue, to which access has been refused, falls within one of two categories of information, namely:

(i) personal information relating to individuals other than the applicants, and 
(ii) joint personal information relating to the applicants and one or more other parties.

I find that section 37(1) applies to the withheld information.

Section 37(2) 
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. Subsection (2)(b) provides that section 37(1) does not apply if any individual to whom the information relates consents, in writing or such other form as may be determined, to its release to the requester.  

It is also relevant to note that some of the applicants’ children were over 18 at the time the request was made and so the applicants have no right of access under the FOI Act to personal information of these adult children contained in the records unless consent is provided by the persons to whom the information relates.  No such consent was provided to TUSLA.  

According to the applicants, when they made their original request they understood that it related to them as a family and included all of their children. During the course of the review, the Investigator clarified to the applicants that, as the consent of their adult children had not been provided, they had no right of access to personal information of their adult children.  At a late stage in the review, the applicants provided written consent from their two adult children for the release of their personal information in the records.  Subject to the consent of these adult children being established to TUSLA’s satisfaction, I direct the release of their personal information, or joint personal information of the applicants and their adult children in the records relevant to parts 6, 12 and 22 of the request.    

However, the remaining information at issue also comprises personal information relating solely to third parties other than the applicants or their adult children who gave consent, or joint personal information that includes personal information relating to third parties other than the applicants or their adult children. Consent has not been given by those parties for the release of such information, and I am satisfied that it is not appropriate to seek the consent of those parties to the release of the information.

Subsection (2) also provides for a number of other circumstances where section 37(1) does not apply (subsections 2(c), 2(d) and 2(e) refer). I am satisfied that those circumstances do not arise in this case.

Section 37(5)
Having found that section 37(1) applies to certain of the withheld information, I must also consider section 37(5). That section provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned. In my view, the release of the information to which I have found section 37(1) to apply would not benefit the third parties to whom the information relates. I am satisfied that section 37(5)(b) does not apply.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. 

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 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.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, 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.

The information at issue in this case is of a private and sensitive nature. In the circumstances, and given that the release of records under the FOI is regarded, in effect, as release to the world at large as I have explained above, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. I find that section 37(5)(a) does not apply in this case.
 

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of TUSLA in this case. I affirm TUSLA’s refusal of parts 3, 5, 19 and 23 of the request under section 15(1)(a).  I affirm TUSLA’s decision to refuse access, under section 37 to withhold certain information from the records relevant to parts 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22 and 24, apart from personal information relating to the applicants’ adult children in parts 6, 12 and 22, subject to their consent being established to TUSLA’s satisfaction. 

I annul TUSLA’s decision to refuse part 25 of the request under section 15(1)(i) and direct it to undertake a fresh decision making process on this part, taking account of this decision where any of the same records are included.
 

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