Whether Tusla was justified in refusing access to records relating to the applicant-�s late father, including any fostering and adoption notes, and his birth parents

11 November 2022

Background

In a request dated 24 March 2021, the applicant sought access to records, including notes pertaining to fostering and adoption, relating to her late father and his birth parents.  In a decision dated 18 November 2021, Tusla identified 151 records that fell within the scope of the request, and part-granted the request, withholding certain records in whole or part under section 37(1) of the FOI Act. On 15 December 2021, the applicant sought an internal review of Tusla-�s decision. In its internal review decision dated 1 April 2022, Tusla varied its original decision. In particular, it indicated that a further search for records had identified one additional record that fell within the scope of the request, which it released in full to the applicant. Tusla affirmed the remainder of its original decision. On 5 April 2022, the applicant applied to this Office for a review of Tusla-�s decision.

In its submissions to this Office, Tusla indicated that it had also considered the right of access to a deceased person-�s records in line with S.I No 2018 of 2016 -� the Freedom of Information Act 2014 (Section 37(8) Regulations) 2016 (the 2016 Regulations). As Tusla did not reference the 2016 Regulations in either its original decision or its internal review decision, the applicant had not had a chance to consider them in the context of this case. Accordingly, we wrote to the applicant to put her on notice of Tusla-�s consideration of the 2016 Regulations and to invite her to make any additional submissions that she wished. The applicant subsequently made further submissions, which I have considered in full.

In the course of her further submissions, the applicant introduced the question of additional records which she considered may exist and which had not been scheduled in Tusla-�s response to her FOI request. I raised the matter of the additional records that the applicant stated ought to exist with Tusla, which it addressed in subsequent submissions. Although it did not specifically cite section 15(1)(a) of the FOI Act (in circumstances where the applicant had not raised the matter of the additional records she believed ought to exist in direct correspondence with it), I considered that Tusla-�s arguments amounted to an administrative refusal of this aspect of the applicant-�s request. I therefore assessed its response with reference to section 15(1)(a) of the FOI Act. In addition, as the applicant had not had an opportunity to consider section 15(1)(a) in the context of this matter, I wrote to her again to put her on notice of its potential applicability and to invite her to make any submissions that she wished in relation to same. The applicant subsequently made additional submissions, which I have considered fully.

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 to Tusla for an internal review.  I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether Tusla was justified under section 37 of the FOI Act in withholding, in whole or part, access to the records sought by the applicant. In addition, the applicant has also asserted that additional records should exist which should have been released to her, and this review will also address this matter.

Preliminary Matters 

Before setting out my findings, there are some preliminary points I wish to make. The first point to note is that section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that an applicant's motivation cannot be considered, except insofar as it might be relevant to the consideration of public interest provisions.

In addition, I should point out that, while I am required by section 22(10) of the Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This means that the extent of the reasons that I can give in relation to certain aspects of this decision is limited.

It should also be noted that any review conducted by this Office under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision by this Office.

Finally, it is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Section 37(1)

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.

In its submissions regarding section 37(1), Tusla set out its reasons why, in the first instance, it considered that the material redacted from the records was personal information. In particular, it argued that the redacted portions of the records contained sensitive information relating to a specific third party. It stated that the redacted information comprised correspondence from the third party to the relevant organisation, the release of which would involve the disclosure of personal information about an identifiable person.

As outlined above, under section 25(3) of the FOI Act I am restricted from the amount of information I can relate in this regard. It must suffice for me to say that, on the basis of an examination of the records and on the submissions made by Tusla, I am satisfied that the redacted material is personal information for the purposes of section 2. Given the nature of the records at issue and their contents, I am satisfied that their release would involve the disclosure of personal information relating to an individual other than the applicant and that section 37(1) applies. However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.

Section 37(2)

Section 37(2) of the FOI Act provides that section 37(1) does not apply in certain circumstances. In her request to Tusla for an internal review, the applicant made certain arguments under specific subsections of 37(2) as to why she believed section 37(1) should not apply, and I wish to address these arguments. In particular, the applicant cited sections 37(2)(a), (c) and (e) of the FOI Act which state, respectively, that section 37(1) does not apply if:

1. the information concerned relates to the requester concerned;

(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public;

(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.

In respect of section 37(2)(a), the applicant argued that the records related to her as they contained details of certain of her familial ancestors. The applicant argued that information relating to such familial ancestors was -�-�directly personal-� to her on the basis that the individuals were her direct relatives and that information relating to such individuals was part of her -�DNA ancestry tree-� and -�-�part of me genetically-�. I am unable to accept this argument. The fact that one is a descendant of an individual to whom information in a record relates does not mean, in my opinion, that any such information that is specifically and solely about that individual can also be said to relate to the relevant descendant. I consider that section 37(2)(a) is clearly intended to give a requester a right of access to information that directly relates to them as an individual, and not to information that relates to other individuals to whom the requester might be related.

Regarding section 37(2)(c), the applicant argued that she had previously made requests to the HSE for information from its register of births, deaths and marriages, and that these requests had been successful, and moreover that there had been no requirement that she had to be related to any individuals in respect of whom she had requested such records. She argued that this meant that the information at issue, which was initially held by a particular organisation and is now held by Tusla, should be similarly available. Having examined the information in the records at issue, I am satisfied that it is clearly not of the same kind (certificates relating to births, deaths and marriages) that is available to the general public in the example given by the applicant.

In relation to section 37(2)(e), the applicant argued that she should be able to obtain information relating to the medical history of her familial ancestors as this could be important information in the context of her own health. In the first instance, I am not satisfied that the arguments made by the applicant meet the standard of a -�serious and imminent danger-� to the life or health of an individual, as required by section 37(2)(e) of the FOI Act. This Office takes the view that the test to be to be met in section 37(2)(e) is a high one. The risk to life or health must be serious and must be imminent. This means that the degree of danger must be grave and the danger must be impending or close at hand. It must also be shown that disclosure of the information is required in order to avoid such harm. A clear link must therefore be established showing that disclosure of the information is necessary for such purposes. I do not consider that this is the case in relation to the information at issue. In any case, having examined the material withheld by Tusla, I consider that the vast majority of it does not fall into the category of information described by the applicant in her arguments under section 37(2)(e) (ie. information regarding the medical history of her familial ancestors).

On the basis of the above analysis, I am satisfied that section 37(2) does not apply in this case.  

Section 37(5)

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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or 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, which provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. 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.

In relation to the issue of the public interest, it is also important to have 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] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

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. 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.

In its submissions regarding section 37(5)(a), Tusla stated that it had weighed up public interest factors both for and against the release of the redacted information. In favour of release, it identified such factors as the public interest in openness and transparency regarding the manner in which FOI bodies perform their functions; the public interest in members of the public knowing that the information held by public bodies about them, or those they represent, is accurate; and the public interest in members of the public exercising their rights under the Act. Against this, Tusla identified the strong public interest in protecting the right to privacy. Tusla concluded that, on balance, its view was that the public interest was better served by protecting the right to privacy of the third party than by releasing the relevant information.

The information that I have identified in the records as falling within the scope of section 37(1) of the Act is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.

The 2016 Regulations

As outlined above, in its submissions Tusla also indicated that it had considered the right of access to a deceased person-�s records in line with the 2016 Regulations. The 2016 Regulations are relevant by virtue of Section 37(8) of the FOI Act, which provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where:

-�(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations-�

Such regulations have indeed been made, in the form of the 2016 Regulations. Among other things, the 2016 Regulations provide that, notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where

            -�(a) the requester concerned belongs to one or other of the following classes:

- a personal representative of the individual acting in due course of administration of the individual-�s estate or any person acting with the consent of a personal representative so acting,

- a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, or

(b) the requester is the spouse or the next of kin of the individual and, in the opinion of the head [of the relevant FOI body], having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request-�.

In correspondence with this Office, Tusla indicated that it accepted that the applicant was the next of kin of her late father. She therefore falls within the category of persons set out in paragraph (b) of the 2016 Regulations above, at least insofar as the information in the records that has been withheld by Tusla relates to her late father.

In its submissions, Tusla stated that, irrespective of any potential right of access that the applicant might enjoy under the 2016 Regulations to information relating to her late father, much of the withheld information related not to the applicant-�s father, but his mother (ie. the applicant-�s paternal grandmother). Tusla stated that the withheld information contained specific references to the personal life of the applicant-�s paternal grandmother and was not directly related to the applicant or her father. However, I would note in this regard that the applicant-�s request was not solely for records relating to her late father. Her original request of 24 March 2021 clearly sought records relating to -�-�my fatherand his birth parents[my emphasis]-�. It is worth noting that in its letter to the applicant setting out its initial decision on her FOI request, Tusla characterised the request as being for access to -�All documents and Records relating [sic] my father including any foster/Adoption notes-�, but this wording does not appear in the applicant-�s request and is arguably a slight mischaracterisation of the request. In its subsequent internal review decision, Tusla characterised the request as being for access to -�All records relating to my father and his birth mother-�including any foster/Adoption notes-�. While this is closer to the actual wording of the applicant-�s request, again it arguably does not quite reflect the full scope of the request (referring only to the applicant-�s father and his -�birth mother-�, and not his -�birth parents-� which was the wording used by the applicant in her request).

Having reviewed the records, I accept Tusla-�s argument that much of the material redacted from the records is personal information relating not to the applicant-�s father, but to her paternal grandmother. As outlined above, by the precise wording of the applicant-�s request, it is clear that she did in fact seek access to records relating to her paternal grandparents (and not solely to her father). However, notwithstanding this fact, I consider that it is not evident from the information available to me that the applicant enjoys a right of access under the 2016 Regulations, as next of kin, to information in the records that relates to her paternal grandmother. In particular, there is no information before me to suggest (and the argument has not been advanced) that the applicant is (or may be) the next of kin of her paternal grandmother. In those circumstances I do not find that a right of access exists for the applicant in respect of the information in the records that relates to her paternal grandmother.

Insofar as the withheld information in the records does relate to the applicant-�s father, for the purposes of the 2016 Regulations the question I must consider is whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

Under section 48(1) of the Act, the Minister for Public Expenditure and Reform may draw up and publish guidelines for the effective and efficient operation of the Act to assist bodies in the performance of their functions under the Act. FOI bodies must have regard to any such guidelines. The Minister has produced guidance relating to section 37(8) and the 2016 Regulations.

In considering whether the public interest would on balance be better served by granting than by refusing to grant the request, the relevant guidance suggests that each case must be judged on its own merits and that the public interest in the confidentiality of personal information will have to be balanced against the public interest in the right of the requester to access the records. It suggests that in light of the requirement to have regard to "all the circumstances", the factors to be considered include:

• the confidentiality of personal information, as set out in section 37(1) of the FOI Act;
• whether the deceased would have consented to the release of the records to the requester when living;
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records;
• whether release would damage the good name and character of the deceased;
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death;
• the nature of the records to be released. The Guidance says that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release, which might include the release to a blood relative of records that show a hereditary medical condition. In relation to medical records in particular, the Guidance says that due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour;
• any other relevant circumstances that the requester may set out.

Tusla stated that it had endeavoured to release as much of the information contained within the records to the applicant within the confines of the legislation, and that it had attempted to strike a balance between making as much information as possible available to the applicant concerning the applicant-�s father-�s birth and information surrounding his birth family while seeking to protect the privacy rights of the relevant third parties. Tusla stated that all medical information contained in the records that related to the applicant had been released.

I have considered the material at issue in light of Tusla-�s submissions, the provisions of the 2016 Regulations and the guidance from the Minister for Public Expenditure and Reform. I determine that the public interest would not be better served by granting, than by refusing to grant, the applicant a right of access to the relevant information in the records.

Section 15(1)(a)

Additional submissions made by the applicant

As outlined above, in the course of correspondence exchanged with this Office, the applicant took the opportunity to introduce the question of certain additional records that she considered ought to exist.  In particular, the applicant stated that she had been advised by the organisation that originally held the records that her late father-�s parents (ie. her paternal grandparents) had signed certain documents pertaining to her father-�s adoption, and queried why no such records were identified by Tusla in its response to her FOI request. In addition, the applicant stated that records should also exist relating to the identities of persons who may have visited her father during a period when he was in the care of that organisation, stating that her paternal grandmother and the organisation had agreed to allow access for a -�delegate-� to visit her father on behalf of his mother.

I raised with Tusla the matter of the additional records that the applicant claimed ought to exist, and it stated that the records it had identified in response to the request were all the records that it held in relation to the applicant. I considered that this amounted to a refusal of this aspect of the applicant-�s request under section 15(1)(a) of the FOI Act, which provides for the administrative refusal of a request where the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

Accordingly, I asked Tusla to provide some further information regarding the basis on which it considered that no additional relevant records existed. In response, Tusla stated that all records that it held specific to the request and to the applicant had been located as a result of searches undertaken across its systems. Tusla stated that it was merely a custodian of the historical records and could not confirm any interactions with the relevant organisation, other than the records that were provided to it in the process of the handover. It stated that it could not comment on, confirm, or deny any conversations had with the relevant organisation in relation to the process of the adoption of the applicant-�s father. In addition, Tusla stated that there was no record of any person visiting the applicant-�s father, and nor were there details of, or reference to, any agreement to allow a -�delegate-� access. Tusla stated that it was not known if such a record ever existed, but that there was no indication of any such record held within those transferred to it by the organisation. Tusla stated that a situation whereby a -�delegate-� was nominated to visit a child in the care of the relevant organisation would have been an unusual arrangement for the relevant period of time, based on its experience of the practices of organisations such as the one in question.

Tusla stated that it had only been able to conduct searches based on the records provided to it, and that it was outside of its remit and ability to ascertain what should and should not exist within these historical records. It stated that, in individual cases, the volume and content of records provided to it could vary significantly, depending on each individual-�s file and on whether or not contemporaneous notes were taken at the time. It stated that it could only ascertain, based on the content held within the file, that there was no record existing that indicated that the applicant-�s paternal grandfather and grandmother signed over their son to be -�adopted-� out. Tusla stated furthermore that there was no record relating to who would have visited the applicant-�s father, and that this would not have been unusual based on other, similar records held within the same timeframes. Tusla stated that there was also no evidence relating to an agreement regarding access by a delegate. In sum, Tusla stated that it could only ascertain that it did not hold the additional records the applicant claimed ought to exist. Tusla also provided to this Office certain details in relation to its storage and search procedures in relation to records that had been provided to it by bodies such as the organisation in question.

In submissions subsequently received from the applicant in relation to section 15(1)(a), she stated that she could confirm that she had had a meeting with the organisation that originally held the records. The applicant also referred to redacted records provided to her by Tusla that she stated alluded to an arrangement (between her paternal grandmother and the organisation in question) for a -�delegate-� to visit her father. The applicant also stated that the organisation might also have held records relating to her paternal grandmother under a false name (or names) that it had assigned to her for its files, and questioned whether searches could be made for records under these other names.

In relation to the applicant-�s submissions, I would first of all note that the fact of a meeting having occurred between her and the organisation that originally held the records has not been disputed by Tusla. Furthermore, it does not follow from the fact of such a meeting having taken place that the additional records the applicant claims should have been provided to her are in fact held by Tusla. In relation to the applicant-�s claim in relation to records pertaining to a -�delegate-� who may have visited her father, I accept that the redacted records provided by the applicant (which were released to her by Tusla) suggest that the matter of such a visit was raised. Moreover, the records suggest that the organisation that was caring for her father appears to have been open to such a visit. However, again it does not follow from the existence of these records that any such visit in fact took place, or that Tusla holds additional records pertaining to any such visit. Regarding the applicant-�s argument that additional records may exist relating to her paternal grandmother under a false name (or names), I consider that Tusla has satisfactorily addressed this issue in its submissions, outlined above, regarding the circumstances in which the records came into its possession and the details of the searches it carried out in respect of the records.

In relation to the additional records that the applicant states should exist, I have considered the matter carefully, bearing in mind the submissions made by both parties to the review. In light of the additional information provided by Tusla, and in the absence of any information to suggest that the contrary is the case, on balance I accept its contention that it holds no additional records of relevance to this request.

On the basis of the foregoing analysis, I find that Tusla was justified in refusing access, under section 37 of the Act, to the information in the records that it withheld in response to the applicant-�s FOI request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Tusla. I find that Tusla was justified under section 37 in withholding the records, or portions of the records, to which it refused access under that provision 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.

Neill Dougan
Investigator