Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records relating to the applicant-�s mother other than those released on the basis that no further relevant records exist or can be found, and whether it was justified in redacting, under section 37(1), parts of certain records released

9 November 2022

Background

The Government established a Commission of Investigation into Mother and Baby Homes and certain related matters (the Commission) in February 2015 to provide a full account of what happened to vulnerable women and children in the homes between 1922 and 1998. In accordance with section 43 of the Commission of Investigation Act 2004, the Commission was required to deposit with the Minister for Children, Equality, Disability, Integration and Youth all the evidence received by, and all documents created by or for the Commission, prior to its dissolution on 28 February 2021. The archive includes records relating to 14 mother and baby homes and four county homes that were investigated by the Commission.

In a request dated 16 March 2022, the applicant sought from the Department for all records relating to his deceased mother relating to her time in two of the homes. On 7 April 2022, the Department issued a decision wherein it part-granted the request. It redacted some information under section 37(1) of the Act on the ground that it was personal information relating to third parties.

On 3 May 2022, the applicant sought an internal review of the Department-�s decision. Among other things, he argued other relevant records should exist. On 26 May 2022, the Department affirmed its decision, following which the applicant sought a review by this Office of the Department-�s decision.

During the course of the review, the Investigating Officer provided the applicant with details of the Department-�s submissions wherein it outlined the searches undertaken and its reasons for concluding that no additional records exist. The Investigating Officer invited the applicant to make a further submission on the matter, which he duly did.

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 correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Department-�s position is that no other relevant records, apart from those identified during the processing of the request, exist or can be found. This is, in essence, a refusal to grant access to any additional records under section 15(1)(a) of the Act.

Accordingly, the scope of this review is concerned with whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records sought by the applicant on the basis that no further records exist or can be found, and whether it was justified in redacting parts of certain records under section 37(1) of the FOI Act.

Preliminary Matter

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 generally be disregarded. This means that this Office 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 (see below).

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally  consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

The Department provided this Office with a comprehensive submission outlining its records management systems and background to the type of records that it holds. As the applicant has been provided with those details, I do not propose to repeat them in full here. In summary, the Department explained that it holds the Commission of Inquiry records on a number of databases which include, among other records, details of mothers and children who were resident in the institutions, documents prepared by the Commission during its work and personal testimonies of people-�s lived experiences in these institutions. The Department explained there is a separate eDiscovery system which holds scanned documents relating to in excess of 120,000 individuals. It said the material from the Commission has been migrated to a searchable electronic records system to facilitate searches for FOI requests and subject access requests (SAR) under data protection legislation.

The Department said it holds 166 boxes of physical material. It said that these are being examined and catalogued by archivists to render the material searchable for SARs and FOIs. It said that all of the historical institutional hard copy records and vaccine trial hard copy records have been catalogued and indexed. It said that further indexing and cataloguing is required in respect of the non-institutional records in the Commission-�s archives. These files consist of records created or received by the Commission in the course of its work during the period 2015-2021. These records contain far less personal data than the institutional records but any that do are being indexed as they are catalogued.

The Department explained that the Commission created two databases with information on individuals who passed through Mother and Baby institutions from various source records it received from institutions as part of its investigation. It also had access to other records such as HSE records which it also used to compile these databases but these records did not transfer to the Department as part of the archive. The source documents from various institutions investigated by the Commission were scanned and uploaded and each institutional document scanned was given a document identity code. The Department said that the Commission undertook a significant checking and cross-checking exercise to ensure that all records in its possession relating to an individual were identified and recorded and associated with the correct individual-�s record on the databases.

In relation to the applicant-�s request, the Department said that all databases were searched upon receipt of the request. It said that electronic searches were carried out using the personal data of the applicant-�s mother, in particular first name, surnames, date of birth and institution. It said that following identification of the -�card-� or identifying number, other databases were searched and records retrieved. It said that it carried out a physical search on the register book and accompanying index belonging to the Tuam Mother and Baby home.

In response to queries regarding the possibility of lost records or misfiling the Department said that no records from the Commission-�s archive have been destroyed. It explained that the permission of National Archives would be required to destroy any records.

In correspondence with this Office, the applicant pointed out that records relating to -�education, health, time in the homes, reports from homes and boarding out placements-� were not provided. He also said that on a visit to the Bon Secours Nuns in Tuam he had sight of some educational records belonging to his mother but unfortunately a copy of these records were not forwarded to the applicant at that time.

The Department said that although it is currently in possession of the Commission-�s archive, the Department did not compile the records within the archive and cannot comment on what records might exist elsewhere other than with the Department and Tusla. It said that according to the Commission-�s final report, the Sisters of Bon Secours handed all institutional records (that is, records of admissions, births, discharges and deaths which were compiled in Tuam) over to Galway County Council when the home closed. These records became the property of the Western Health Board when it was established in 1970. The records became the property of the HSE in 2005 and the Child and Family Agency (TUSLA) in 2013. The Department explained that Commission-�s final report states:-�The Commission is concerned that some records may have been lost or destroyed over the years. It is impossible to establish if the records currently held by the Child and Family Agency constitute all of the records which existed when Tuam closed in 1961,-� (p. 858).

The Department explained that the amount of information held on each individual within the archive varies. It said it made every effort to retrieve all records sought by the applicant from the Commission-�s archive. It said that if additional information relevant to the request is found it will write to the applicant again and provide the information to him with an explanation of what it relates to. It said that a complete search of the archive was conducted and the searcher completed the checklist for the first search. A second search was carried out by a different individual following receipt of the applicant-�s internal review request. A copy of both checklists have been provided to this Office to demonstrate what searches were carried out.

It is important to note that it is clearly envisage by the Act that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. In certain cases, and depending on the circumstances, an FOI body may not be in a position to state definitively whether additional records exist, what happened to the records if they did exist or why they cannot be found. However, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Moreover, the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even were records were known to have existed but cannot be found. The role of this Office is to determine if the Department has taken all reasonable steps to ascertain the whereabouts of relevant records.

Having regard to the Department-�s explanation of its records management practices in respect of the records sought and to the details of the searches undertaken in this case, and in the absence of evidence to suggest that further specified searches are warranted, I am satisfied that the Department has taken all reasonable steps to ascertain the whereabouts of relevant records. I find, therefore, that the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for further relevant records on the ground that no further records exist or can be found.

Section 37

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).

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 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including;

(i)         information relating to the educational, medical, psychiatric or psychological history of the individual,

(ii)        information relating to the financial affairs of the individual,

(iii)       information relating to the employment or employment history of the individual -�

(viii)     information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status (within the meaning of section 2 (1) of the Civil Registration Act 2004 ) of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual,

(ix)       a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose -�

(xii)      the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

The Department submitted that records number 1, 2, 14, 19, 21 and 23 contain either the names and/or addresses of individuals with whom the applicant-�s deceased mother was boarded out. Similarly, all other records, with the exception of records 1 and 2, contain information relating to other residents of the Mother and Baby Home who were resident in the Home at the same time as the requester-�s now deceased mother. These records also include information on the families of the other residents and staff of the Home. These records include a significant amount of personal information on these third parties including names, house names, addresses, age, dates of birth, dates of death, marital status, religion, financial information and employment status.

I have examined the records carefully and I am satisfied that none of the withheld parts of the records contain information which is personal information relating solely to the applicant-�s mother. The information withheld is either the personal information of third parties or personal information relating to the applicant-�s mother that is intertwined with the personal information of third parties. I find that section 37(1) applies to the information redacted from the records at issue.

Section 37(2)

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 the circumstances identified at section 37(2) arise in this case. 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 that 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) - The Public Interest

Section 37(5) provides that a request that would fall to be refused under subsection (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 subsection 5(b) does not apply in the circumstances of this case. On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, 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-�). In this regard, I note that a true public interest should be distinguished from a private interest.

As regards 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 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 57) (-�the Enet case-�) 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 FOI 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 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 in circumstances where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

I appreciate that the applicant is anxious to have access to all information held by the Department regarding his mother. However, it seems to me that in this case, the Department sought to provide as much information as possible that it holds in relation to the applicant-�s mother whilst simultaneously seeking to protect the privacy rights of other parties.

It is important to note that the information relating to the third parties in question is of an inherently private and personal nature. Having carefully considered the matter, and 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 of privacy of the individuals to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply. Consequently, I find that the Department was justified in refusing access to the withheld information under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision. I find that the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records sought by the applicant on the basis that no further records exist or can be found, and that it was justified in redacting parts of certain records released under section 37(1) of the 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