Whether Tusla was justified in refusing access to parts of the applicant-�s personnel file and other related records under sections 31(1)(a) and 37(1) of the FOI Act

13 October 2022

Background

In a request dated 28 September 2021, the applicant, who at the time was a Tusla staff member, sought access to her HR record. She referenced a specific disciplinary meeting and WhatsApp messages from her mobile phone. Following correspondence between the parties over the following days, the applicant clarified that her request was for the following:

1. Any records relating to a disciplinary meeting she attended on a specified date with two named Tusla officials,
2. Any records held by HR in relation to WhatsApp messages from her personal phone number, and
3. A copy of her HR File from 1 January 2021 to 6 August 2021.

It appears that Tusla did not issue a decision within the required timeframe and that the applicant sought an internal review of the deemed refusal of her request on 4 February 2022. On 1 March 2022, Tusla part-granted the request. It identified four files of records as falling within the scope of the request, as follows:

• File 1: Pages 1-32
• File 2: Pages 1-23
• File 3: Pages 1-214
• File 4: Pages 1-44

It refused access to various parts of the files under sections 31(1)(a) and 37(1) of the Act. On 6 March 2022, the applicant applied to this Office for a review of Tusla-�s decision.

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 applicant-�s comments in her application for review and to the submissions made by Tusla in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

Apart from the exemptions cited, Tusla also refused access to parts of various records contained in the four files of records on the basis that the information falls outside the scope of the applicant-�s request. Having examined the relevant records, I am satisfied that the information in question does, indeed, fall outside the scope of the request and, accordingly, I will not consider such information any further. In addition, I also consider the email contained at page 97 of File 3 to fall outside the scope of the applicant-�s request. 

Accordingly, this review is concerned solely with whether Tusla was justified in refusing access to certain records, in whole or in part, under sections 31(1)(a) and 37(1) of the Act. The specific records, or parts of records, to which access was refused, are described in the body of the decision, below.

Preliminary Matters                                                                        

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, as has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Secondly, 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 records in question, except in so far as those motives reflect what might be regarded as true public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Analysis and Findings

Section 31(1)(a) -� legally privileged information

Tusla refused access to parts of pages 116 to 126 in File 3 on the basis of section 31(1)(a).

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• 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
• 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 also accepts that advice privilege may attach to records that form part of a continuum of correspondence that results from the original request for advice.

Pages 116-126 in File 3 comprise a chain of email correspondence between representatives of Tusla and its legal advisers. In its submission to this Office, Tusla argued that the relevant parts of the correspondence attract legal advice privilege as they relate to the seeking of legal advice with regard to certain aspects of the disciplinary process relating to the applicant.  

Having examined the relevant parts of the correspondence at issue, I am satisfied that the information redacted from pages 116 to 126 in File 3 comprises confidential communications made between Tusla and its legal adviser for the purpose of obtaining and/or giving legal advice and that advice privilege applies. I find, therefore, that Tusla was justified in refusing access to the information under section 31(1)(a).

Section 37 -� personal information

Tusla refused access to the following parts of records under section 37(1) of the Act:  

File 1:

• Part of page 1
• Part of pages 2-8
• Part of pages 9-22
• Part of page 23
• Part of pages 24-26
• Part of pages 27-32

File 2:

• Part of pages 1-5
• Part of pages 6-13 
• Part of pages 17-23

File 3:

• Part of pages 1-12
• Part of pages 13-23
• Part of pages 26-67
• Part of pages 86-115
• Part of pages 116-126
• Part of page 134
• Part of page 136
• Part of page 157
• Part of pages 172-177
• Part of pages 208-211

File 4:

• Part of pages 1-10
• Part of pages 13-24
• Part of page 27
• Part of pages 28-30
• Part of pages 34-40

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).

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual, (v) information relating to the individual in a record falling within section 11(6)(a) (a personnel record of a member of staff of an FOI body) and (xiv) the views or opinions of another person about the individual.

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or 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 those functions.

Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at Paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.

In its submission to this Office, Tusla argued that the information to which access has been refused relates to the private employment affairs of staff members other than the applicant. It further argued that the information does not relate to role-related functions of such staff members but rather relates to very sensitive specific personal identifiers and details relating to complaints, allegations, disciplinary matters and personal employment affairs. 

Having examined the information to which access has been refused in the relevant records, which relates in the main to sensitive issues such as complaints, allegations and disciplinary issues in the workplace, I am satisfied that the release of this information would involve the disclosure of personal information relating to individuals other than the requester and that section 37 applies to the redacted information,apart frompages 89-93 in File 3.   With the exception of the information contained on these pages in File 3, I am satisfied that the remaining information comprises either personal information relating to third parties or joint personal information relating to the applicant and other parties. I am satisfied that the applicant-�s personal information is so closely intertwined with the personal information of other parties in certain records that it is not feasible to separate the two.

However, with regard to the information contained on pages 89-93 of File 3, I consider the information contained on these pages to fall within the exclusion provided for by Paragraph (I) as outlined above, as the correspondence relates to the performance of functions by staff of a public body.   I am therefore satisfied that section 37(1) does not apply to this information.  However, I am satisfied that section 37(1) does apply to the staff mobile phone numbers on these pages. 

Accordingly, I am satisfied that section 37(1) applies to the information to which access has been refused, with the exception of pages 89-93 of File 3.    While I consider that section 37(1) does not apply to pages 89-93 of File 3, I am satisfied that that section applies to the staff mobile phone numbers on these pages. 

With regard to the information to which I have found section 37(1) to apply, I must now consider whether any of the other provisions of section 37 serve to disapply this exemption.  

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.  

Section 37(5) of the FOI Act 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. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), the question I must consider is 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 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-�. 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.

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. 

On the matter of the applicability of section 37(5)(a), 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.

Having regard to the sensitive nature of the information at issue, and having regard to the fact 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 find no relevant public interest in granting access to the records at issue that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates.

I find, therefore, that Tusla was justified, under section 37(1) of the Act, in refusing access to information in the relevant records, with the exception of pages 89-93 of File 3.    I also find that it was justified in refusing access to the staff mobile phone numbers on pages 89-93 of File 3.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary Tusla-�s decision.  I affirm its decision to withhold certain information from the records at issue under sections 31(1)(a) and 37 of the FOI Act, with the exception of pages 89-93 of File 3.   I direct that these pages be released to the applicant, with the exception of the staff mobile phone numbers contained on these pages.    

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