Whether Tusla was justified in refusing access, under section 37 of the FOI Act, to certain information in records relating to the applicant and his son on the ground that the disclosure of the withheld information would involve the disclosure of personal information relating to third parties

13 September 2022

Background

In a request dated 11 August 2021, the applicant sought access to various records held by Tusla that related to him and to his son, including two specific referrals to Tusla by named persons. On 23 September 2021, Tusla issued its decision. It identified 83 pages of records as falling within the scope of the request. It part-granted the request and withheld certain records in whole or in part under section 37 of the FOI Act (third party personal information). On 6 October 2021, the applicant sought an internal review of Tusla-�s decision, stating that that the records had been substantially redacted, that he had not received copies of the specific referrals that he had requested, and that he was entitled to see accusations made against him. He asked that the records be released in full. Tusla affirmed its decision on 12 January 2022. On 11 February 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 submissions made by Tusla and the applicant-�s comments in his 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.  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 Review

In the course of the review, Tusla released further records to the applicant, some in full and some in part.

This review is therefore concerned solely with whether Tusla was justified in refusing to release, under section 37 of the FOI Act, the following remaining records:

• Records number 58, 60, 61, 65-67, and 69 (in full), and
• Records number 1-6, 8, 10-11, 13-17, 19, 21-27, 29-40, 42-47, 49-56, 63-64, 68, 70-80 and 83 (in part).

Preliminary Matters                                                                        

There are a number of preliminary matters that I wish to address at the outset. First, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to 'the world at large' as the Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record maybe put.

Secondly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that this Office cannot generally 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.

Finally, 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. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

Section 37(1)

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). 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 2 of the FOI Act defines 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 that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, and (xiv) the views or opinions of another person about the individual.

Certain information is excluded from the definition of personal information in section 2. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph I refers).

The records in this case relate to a number of referrals to Tusla-�s Child Protection & Welfare service in relation to the applicant-�s son. In its submissions, Tusla said that the information that it refused to release consisted of personal information relating to parties other than the applicant and/or his son, as well as joint personal information. It said that where joint personal information occurred, the information concerning the applicant was inextricably linked to information about third parties and could not be separated in a meaningful way.

Having carefully examined each of the records at issue, I am satisfied that section 37 applies to all of the information that Tusla has refused to release, comprising either personal information relating to individuals other than the applicant and his son, or personal information relating to the applicant and/or his son that is inextricably linked to personal information relating to other individuals (joint personal information). I find that section 37(1) applies to all such information.

I should add that while it may be the case that some of the withheld information is generally known to the applicant, I must have regard to the fact that, as set out above, a record released under the FOI Act effectively amounts to disclosure to the world at large.

That is not the end of the matter however, as section 37(1) is subject to the provisions of subsections (2) and (5).

Section 37(2)

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 provided for in section 37(2) apply to the information concerned. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)

Section 37(5) 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. There is no evidence to suggest that the persons to whom the information relates would benefit by its release and I find that section 37(5)(b) does not apply in this case.

As to whether section 37(5)(a) applies, the question I must consider is whether the public interest in releasing the information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26) (-�the Rotunda case-�). It is noted that a public interest should be distinguished from a private interest.

In considering the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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.

As noted above, I am required to disregard the applicant-�s reasons for making the FOI request. Therefore, I can only take into account the purpose for which he seeks this information insofar as it can be construed as a public interest. It is the applicant-�s position that false accusations have been made against him in relation to his child, and that without access to the full and unredacted file, he is unable to respond to these accusations. He said that the refusal to release information pertinent to the welfare of his child permits someone who is of a mind to -�game-� the child protection system to do so with impunity. He said that it appeared to him that in preparing its FOI response, Tusla did not consider the possibility that it was being lied to or manipulated.

I am conscious 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. In terms of the applicant being made aware of allegations made against him, so that he could respond to them, which I accept is a core element of natural justice and fair procedures, having reviewed the records, it seems to me that Tusla, in the course of carrying out its child protection and welfare function, made the applicant aware of concerns that were raised in relation to the care of his child. While I can appreciate why the applicant wishes to have access to a complete copy of the records, I am bound to treat his interest in seeking access to this information as a private rather than a public interest. In processing the FOI request, it seems to me that Tusla endeavoured to release the records to the greatest extent possible having regard to section 18 of the Act, together with the provisions of section 37(1).

Having carefully considered the matter, given the strong public interest in protecting the right to privacy I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information relates.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Tusla to refuse access, under section 37(1) of the Act, to the records at issue.

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