Whether Tusla was justified in refusing access to specific reports on the basis of sections 31(1)(b), 32(1)(a) and 37(1) of the FOI Act 

16 September 2022

Background

In a request dated 24 March 2022, the applicant sought access to two specified reports relating to him. In a decision dated 4 April 2022, Tusla refused access to the records on the basis of section 32(1)(a)(i) of the FOI Act. In correspondence dated 19 April 2022, the applicant sought an internal review of that decision. In a decision dated 23 May 2022, Tusla affirmed the original decision on the same basis. On 25 May 2022, the applicant applied to this Office for a review of Tusla-�s decision.

During the course of the review, it came to the attention of this Office that sections 31(1)(b) and 37(1) of the FOI Act were also relevant. This Office made the applicant aware of this position and invited submissions in respect of same. No such submissions have been received.

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 his application for review and to the submissions made by Tusla in support of its decision. 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

A review by this Office is considered to be -�de novo-�, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the -�de novo-� nature of our reviews, I consider it appropriate to consider the applicability of additional exemptions identified as relevant, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the reports in Tusla-�s decisions on the request. Accordingly, this review is concerned solely with whether Tusla was justified in refusing access to the records on the basis of section 31(1)(b), 32(1)(a)(i) and/or 37(1) of the FOI Act.

Preliminary Matters                                                                       

It is important to note at the outset that although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited, particularly in the context of records which contain sensitive and personal information.

I note that in his correspondence with this Office, the applicant provided details of his reasons for seeking access to the records at issue. Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

It is also important to note that 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.

Analysis and Findings

Section 31(1)(b)

Section 31(1)(b) provides that a head shall refuse to grant an FOI request if the record concerned is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court. Section 31(1)(b) does not require consideration of the public interest.

It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The in camera rule applies to proceedings where there is a statutory requirement such proceedings are held in private or otherwise than in public. It applies to certain proceedings including certain family law proceedings and certain proceedings involving minors. In many cases the requester seeking access to the records may have been a party to the in camera proceedings. However, the identity of the requester is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).

During the course of the review, and following engagement with the applicant and the FOI body, the Investigator asked Tusla to confirm certain matters in respect of the records and referred it to the possible relevance of section 31(1)(b). In its response, Tusla says that the records in question were created and furnished to the District Court in the context of care proceedings and that such proceedings are in camera. Its position is that section 31(1)(b) applies as the disclosure of the documents would constitute contempt of court.

In light of the above submissions, this Office wrote to the applicant informing him of Tusla-�s position and providing an opportunity for him to make further submissions. To date, no such submissions have been received.

While limited submissions have been received by Tusla in respect of this exemption, having considered the records and the information provided, I accept its position that the records in question were created and furnished to the District Court in the context of care proceeding. I am also satisfied that they relate to court proceedings held in camera. It is not relevant whether the applicant was a party to such proceedings or the subject of the records concerned.

I am not aware of any judicial authority regarding the disclosure of the records concerned. I accept that disclosure under the FOI Act would amount to a contempt of court. Accordingly, I find that section 31(1)(b) applies to the two records identified.

Given my findings in respect of section 31, I am not required to consider the other exemptions raised in this review.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla-�s decision. I find that the records are exempt under section 31(1)(b) 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