Whether TUSLA was justified in refusing to grant access to records relating to the applicant, under section 37 of the FOI Act on the basis that the records contain personal information of third parties, under section 31(1)(a) on the ground that the records contain legal advice, and under section 31(1)(b) on the ground that release of the records would constitute contempt of court

 

OIC-96494-X1G6C4

 

 

Background

 

The applicant and her husband have been foster carers since the early 1980’s. In a request dated 10 February 2020, she sought access to records held by TUSLA relating to her for the period 1 January 1983 to 1 January 2020. Her request was accompanied by a letter from her husband in which he consented to the applicant to request a copy of any and all personal information held.

 

TUSLA identified 11 large files comprising over 3,000 pages of records as coming within the scope of the applicant’s request. In a decision dated 10 June 2020, TUSLA part-granted the applicant’s request. It refused access to certain information contained in the records under sections 37(1) (third party personal information), 31(1)(a) (legal professional privilege), and 31(1)(b) (contempt of court) of the FOI Act. The applicant sought an internal review of that decision, following which TUSLA affirmed its original decision. On 4 September 2020, the applicant sought a review by this Office of TUSLA’s decision.

 

I have now completed my review of TUSLA’s decision. I have decided to bring the case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and TUSLA as outlined above and to communications between this Office and both the applicant and TUSLA on the matter. I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by TUSLA in the schedule of records it prepared when processing the request.

 

 

Scope of this Review

 

This review is concerned solely with whether TUSLA was justified in refusing access to certain records, in whole or in part as set out in the schedule accompanying its decision, under sections 31(1)(a), 37(1), and 31(1)(b) of the Act.

 

The applicant’s request was for records for the period 1 January 1983 to 1 January 2020. As pages 124-135, 332-345 and pages 393-397 in File 2 post-date the applicant’s request, I have not considered these records.

 

 

Preliminary Matters

 

Before I address the substantive issues arising, I would like to make some preliminary points.

 

First, I wish to address a comment the applicant made in her application for review to this Office. She said she is engaged in ongoing court proceedings with TUSLA. She alleged that her complete personal files have been given to her solicitor under disclosure requirements and that if she was to represent herself she would be entitled to her complete files under the same disclosure requirement. While I can make no comment on the applicant’s entitlement to access her files through discovery, I would note that documents disclosed on discovery in the context of court proceedings are subject to an implied undertaking given to the court and to the other party, by the party to whom the documents are produced, that the documents disclosed shall not be used otherwise than within and for the purpose of the action in which they were disclosed. On the other hand, the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no such constraints on the uses to which the information contained in those records may be put. In the circumstances, I can have no regard to what records, if any, the applicant may be entitled to access through discovery when considering whether TUSLA was justified in refusing access to certain records on foot of the FOI request.

 

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 information that has been withheld or the reasons for my findings in this case are necessarily limited.

 

Finally, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. This means that I 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 31(1)(a) - legal professional privilege

Section 31(1)(a) is a mandatory exemption that requires a public body to refuse a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

 

1. 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
2. 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).

 

This Office accepts that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence that results from the original request for advice.

 

In its submissions to this Office, TUSLA argued that the records refused under section 31(1)(a) are records that relate to communications with its legal advisor related to legal advice privilege.

 

Based on my examination of the records, I find that section 31(1)(a) of the Act applies to those records refused by TUSLA under this provision of the Act, other than the following records:

 

• File 5, pages 226-227 – this is simply an internal note that indicates that legal advice has been sought.
• File 11, page 168 – this record is a letter from TUSLA’s legal representatives to the applicant’s legal representatives.
• File 11, page 337 – this is a copy of page 168.
• File 11, page 439 – this is an internal email about the case review.

 

Accordingly, I direct the release of these records subject to the redaction, under section 37 of the Act, of third party personal information as outlined in the Appendix to this decision.

 

Section 31(1)(b) – contempt of court           

Section 31(1)(b) provides for the mandatory refusal of a request if the record sought is such that the FOI body knows or ought reasonably to have known that its disclosure would constitute contempt of court. The provision is not subject to a public interest balancing test.

 

TUSLA refused the following records under section 31(1)(b).

 

• File 2, pages 401-437 (Statement Validation Report for applicant and her husband)
• File 2, pages 110-123 (Social Work Court Report)
• File 8, pages 291-302 (Social Work Court Report)
• File 10, pages 44-65 (Social Work Report)
• File 11, pages 76-82 (Social Work Report)
• File 11, pages 172-201 (Social Work Court Report)
• File 11, pages 475-477 (Update for Case Review Panel)

 

In its submissions to this Office, TUSLA said the relevant records relate to confidential documents which are/were connected to Court proceedings and formed part of TUSLA’s information to those proceedings, where the in-camera rule applies.

 

It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The in-camera rule applies to proceedings where there is a statutory requirement that such proceedings are held in private or otherwise than in public. It applies to certain proceedings including certain family law proceedings and certain proceedings involving minors. In many cases the requester seeking access to the records may have been a party to the in camera proceedings, but the identity of the requester is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).

 

Having regard to TUSLA’s submissions, and having regard to the nature and contents of the records in question, I find that section 31(1)(b) applies.

 

Section 37(1) - personal information

While TUSLA released a significant amount of information to the applicant, as set out in the schedule of records accompanying its decision in this case, it also refused access to many records, or parts thereof, under section 37 of the Act on the ground that they contain personal information of individuals other than the applicants.

 

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 (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).

 

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and (xiv) the views or opinions of another person about the individual.

 

As outlined at the outset, the records at issue relate to the applicant and her husband in their roles as foster carers. As such, it will be apparent that many of the records at issue are likely to, and do in fact, contain information relating to the children who were placed in their care. In her application for review to this Office, the applicant argued that having regard to the inherent close personal relationship between foster carers and the children placed in their care, what is deemed personal to her is also personal to the children she has fostered and vice versa. For the purposes of the FOI Act, personal information relating to an individual other than the requester is exempt from release under section 37(1) unless one or more of the other provisions of section 37 serve to over-ride that exemption.

 

Having examined the withheld information at issue, I am satisfied that, with certain limited exceptions identified below, 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 any or all of the redacted information would involve the disclosure of personal information relating to individuals other than the applicant. It may well be the case that a considerable amount of the withheld information is generally known to the applicant. Nevertheless, I must have regard to the fact that a record released under the FOI Act effectively amounts to disclosure to the world at large.

 

In the circumstances, I find that section 37(1) applies to the information withheld by TUSLA, apart from the following specific information, which I direct to be released to the applicant.

 

• File 1, page 184 - release in full.
• File 2, pages 248-249 - (redact initials of third party in paragraph three on page 249)
• File 3, pages 252-254 - (redact the name of the foster child on pages 252 and 253 and the email on page 253 about an unrelated third party)
• File 4, page 231 - (redact the initials of the foster child and the personal email address of the third party)

• File 5, page 96 - (redact the personal email address of the recipient, the mobile number of the sender and details of the sender’s work pattern contained in the last sentence of the email, and the last two sentences of the third paragraph beginning “In reviewing the case of…….”)
• File 5 pages 99 and 100 - (these pages contain the same email as on page 96. The same redactions apply as page 96, in addition to redacting the personal email address of the sender on page 100)
• File 5, page 134 - (redact the address and mobile telephone number of the third party)

• File 5, page 151 - release in full.
• File 5, pages 267-268 - (these pages are a copy of the emails contained in pages 99/100 – the same redactions apply)
• File 5, page 270 - (redact the name of foster child and the personal email address contained in both emails)
• File 7, pages 161-162 - release in full.

• File 7, pages 272-273 - (redact the mobile telephone number on page 272)
• File 7, pages 275-276 - (redact the personal email address on page 275)

• File 11, page 526 – release in full.

 

 

In relation to the information to which I have found section 37(1) to apply, that is not the end of matter as section 37(1) is subject to the provisions of subsections (2) and (5).

 

Subsection (2) provides that subsection (1) does not apply in certain circumstances. Having examined the records, I am satisfied that the circumstances identified at section 37(2) do not arise in this case.

 

Subsection (5) provides that a request that would fall to be refused under subsection (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 am satisfied that subsection 5(b) does not apply in the circumstances of this case.

 

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 v The Information Commissioner & Ors [2020] IESC 57, 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”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, 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.

 

It seems to me that in this case, TUSLA sought to provide as much information as possible relating to the applicant and her husband, while simultaneously seeking to protect the privacy rights of other parties. I am also conscious of the fact that the release of records under FOI is, in effect, regarded as release to the world at large.

 

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 remaining withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates. Accordingly, I find that TUSLA was justified in refusing access to the withheld information under section 37(1).

 

 

Decision

 

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of TUSLA. I affirm its decision to refuse access to further records, under sections 31(1)(a), 31(1)(b) and 37(1) as outlined above, other than the records listed in the Appendix to this decision. I direct TUSLA to release those records in the Appendix to the applicant, subject to the redaction of any personal information of third parties contained in those records as set out in the Appendix.

 

 

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