Case number: OIC-117905-Y1P1B1
7 June 2022
In a request made to the HSE on 2 February 2021, the applicant sought access, through her solicitor, to various records relating to her children, one of whom is deceased. One category of records sought was records created by a named social worker who had been involved with the family from 2007. On 3 March 2021, the HSE transferred this part of the FOI request to Tusla. Any reference to communications with the applicant in this decision should be taken to include communications with her solicitor.
On 13 October 2021, Tusla issued a decision to the applicant in which it granted partial access to the records requested. Of the 155 records listed on the Schedule, it released 15 records but refused to release 34 records in full and 106 records in part, under sections 37(1) and 42(m)(i) of the FOI Act. The applicant sought an internal review of Tusla's decision on 12 November 2021 stating that the heavy redaction of disclosed documents was a disproportionate denial of access to records to relatives of an infant victim who died, she alleged, due to the negligence of the HSE. She said that the granting of partial access rendered the records unintelligible and further disguised the negligence of the HSE with the consequence that such fatalities would reoccur which is not in the public interest, including in the interests of children. On 10 December 2021, Tusla affirmed its decision to partially grant access to the records concerned. The applicant applied to this Office for a review of Tusla's decision on 7 January 2022.
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 Tusla and the applicant's comments in her application for review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The review is concerned solely with whether Tusla was justified in its decision to refuse to release certain records, in whole or in part, under sections 37 and 42(m)(i) of the FOI Act.
The applicant's arguments in favour of the release of the records at issue centre around the tragic death of one of her children and allegations of negligence in connection with this death. While I appreciate that the applicant wishes to access the records in full and I sympathise with her on the tragic loss of her child, section 13(4) of the FOI 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 I 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.
Section 37
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 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform ("the Minister") may make regulations for the grant of an FOI request in certain circumstances where the requester is the parent or guardian of the individual to whom the record relates or where the individual to whom the information relates is dead. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016).
In the course of the review, the Investigator raised a number of questions with Tusla as to why it had decided to release certain information while it refused to release other similar information. She asked whether it had considered the 2016 Regulations around access to records by parents/guardians and access to records concerning deceased persons. In response, Tusla said that on further inspection of the records, it acknowledged that there were inconsistencies in its decision-making and that further records were likely to fall for release to the applicant. It said that, in its view, the request needed to be processed afresh. In these circumstances, I consider that the most appropriate course of action is to simply annul the decision. I direct Tusla to consider the applicant's request again and to make a new, first instance, decision in accordance with the provisions of the FOI Act, including having regard to section 37(8) and the 2016 Regulations.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul Tusla's decision in this case. I direct it to undertake a fresh decision making process in respect of the applicant's request.
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