Whether TUSLA was justified in refusing access, under section 37(1) of the FOI Act, to certain information in records relating to the applicant and his birth mother on the ground that the disclosure of the withheld information would involve the disclosure of personal information relating to third parties
9 March 2022
Background
On 20 November 2019, the applicant made an FOI request to TUSLA for access to all birth, adoption, immunization and medical records relating to him and his birth mother. After a very considerable delay, TUSLA issued a decision on the request on 16 February 2021. It identified 85 pages of records as falling within the scope of the applicant's request. It part-granted the request and withheld parts of the records under section 37 of the FOI Act (third party personal information). On 28 February 2021, the applicant sought an internal review of that decision.
On 1 March 2021 the applicant's daughter, on his behalf, wrote to TUSLA and indicated that the applicant was joined in his application by his sister who was the next of kin of his birth mother who was now deceased. In support of this the applicant provided correspondence from both his sister and a solicitor indicating that she was the next of kin of his birth mother along with other supporting documentation.
On 7 May 2021, TUSLA issued its internal review decision. Based on the additional information that had been submitted by the applicant, it decided to vary the original decision and to release additional information relating to the applicant's birth mother. It indicated that 165 pages of records fell within the scope of the request and released the records with the redaction of certain information under section 37. On 30 August 2021, the applicant sought a review by this Office of TUSLA's decision.
I have now completed my review in accordance with the provisions of section 22(2). In conducting the review, I have had regard to the correspondence between TUSLA and the applicant as described above, and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
In his application for review, the applicant indicated that he was seeking review of TUSLA's decision to redact information from the following pages; pages 0008-0009, page 0056, page 0057, page 0058, page 0059, page 0061, page 0128, page 0129, page 0134, page 0136, page 0137, page 0138, page 0140, page 0141, page 0144, page 0145, page 0148 and page 0152. While the applicant also included page 0042, I am satisfied, given the context, that this was an error and that the applicant meant to refer to page 0142.
All of the information redacted from the relevant records was redacted under section 37 of the Act on the ground that it comprises personal information relating to individuals other than the applicant or his birth mother. Accordingly, this review is concerned solely with whether TUSLA was justified in its decision to redact certain information from the relevant records under section 37 of the FOI Act.
Preliminary Issues
At the outset I wish to address the lengthy delay in TUSLA issuing its decisions in this matter. Firstly, the processing of the applicant's request in this case fell well below the required standards. Both the original decision and the internal review decision issued well after the statutory timeframes, the former being almost 15 months after the applicant's initial request. As this Office has stated on many occasions, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function. While I note that TUSLA has indicated that the delays were due to the lack of staff resources and ensuing backlog of requests, the delays encountered in this case were simply unacceptable, given that the applicant first made his request more than two years ago. Nevertheless, I wish to acknowledge that TUSLA has been engaging with this Office over the past year in an effort to improve the efficiency and effectiveness of its FOI processing and that it has already implemented a number of positive measures in an effort to achieve those improvements.
I must also point out that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office 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 Act requires a consideration of the public interest.
Analysis and Findings
Section 37(1) provides for the mandatory refusal of a request if granting access to the record sought would involve the disclosure of personal information relating to a third party, including a deceased individual. Section 2 of 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.
Moreover, section 37(7) provides for the mandatory refusal of a request if granting access to the record sought 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 while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, any such personal information that is inextricably linked to personal information relating to parties other than the applicant is exempt. However, it is important to note that section 37(1) is subject to the other provisions of section 37, and those provisions must be considered before the request can be refused.
In submissions to this Office TUSLA said that it has endeavoured to provide as much information as possible to the applicant and that it attempted to strike a balance between making as much information as possible available to the applicant concerning his birth and information surrounding his birth family while seeking to protect the privacy rights of the relevant third parties.
Having examined the relevant records, it seems to me that there are two types of information at issue, namely
- personal information relating to individuals other than the applicant or his late mother,
- personal information relating to the applicant and/or his mother that is inextricably linked to personal information relating to other individuals (joint personal information), and
I am satisfied that all of the information redacted from the relevant records comprises information that falls with one or both of categories 1 and 2 above. In other words, in all cases, the disclosure of the information at issue would also involve the disclosure of personal information relating to individuals other than the applicant and/or his mother. Section 37(1) serves to protect personal information relating to third parties. Accordingly, I find that section 37(1) applies to the redacted information.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. 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 in section 37(2) apply in this case. Section 37(5) provides that access to the personal information of a third party may be granted where (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 request would benefit the person to whom the information relates.
I see no basis for finding that the release of the relevant information would benefit the third parties to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
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 inThe 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. It is also relevant 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.
I accept TUSLA's submission that it endeavoured to strike a balance between making as much information as possible available to the applicant concerning his birth and information surrounding his birth family while seeking to protect the privacy rights of the relevant third parties. I find no relevant public interest in granting access to the withheld information in this case that, on balance, outweighs the public interest in upholding the right to privacy of the third parties concerned. I find that section 37(5)(a) does not apply.
In conclusion, therefore, I find that TUSLA was justified in redacting, under section 37(1) of the Act, the information to which I have found section 37(1) to apply.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of TUSLA in this case. I find it was justified in refusing access to information in the relevant records 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
