Whether Tusla was justified in refusing access to records relating to an inspection of the applicant-™s childcare facility under section 29(1) of the FOI Act

24 February 2023

Background

In a request dated 11 May 2022, the applicant sought access to the following records which relate to an inspection of her childcare facility in October 2021:

• Any and all documents in relation to the preparation of the Tusla Regulatory Inspection Report prepared further to an inspection in October 2021. Such documents to include the minutes of meetings at which such decisions were taken in respect of the report, together with any associated statements, reports, memos, attendances;
• Any and all drafts of the Tusla Regulatory Inspection report further to the inspection in October 2021, to include any comments and/or suggested changes made to earlier drafts of the report;
• Any and all documents in relation to the Immediate Action Notice issued to the Childcare Facility in October 2021 including the notes/minutes/attendances of any meetings at which decisions were taken in respect of the Immediate Action Notice;
• Any and all documents relating to the Immediate Action Notice issued in October 2021 including documents relating to the response to the Immediate Action Notice and any notes/minutes/attendances in respect of meetings held after the issuing of the immediate action notice to discuss or consider the response made by the Childcare Facility.

In a decision dated 24 June 2022, Tusla refused access to the requested records under sections 15(1)(i) or 29(1) of the FOI Act. On 21 July 2022, the applicant requested an internal review of Tusla-™s decision. The applicant contended that the refusal decision is generalised and unspecific in that it is not clear what particular records exist and what specific records are being refused for what specific reasons. On 19 August 2022, Tusla varied its original decision. Tusla provided the applicant with a schedule listing 213 pages of records. It granted access to 43 pages of records and it refused access, in full or in part, to the remaining records under sections 29(1) or 37(1) of the FOI Act, or on the basis that parts of the records fall outside the scope of the applicant-™s request. On 15 November 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

In communications with this Office, the applicant confirmed that she is agreeable to confining the scope of this review to Tusla's decision to refuse access, in full or in part, to drafts of an inspection report, drafts of an immediate action notice and emails under section 29(1) of the FOI Act. Accordingly, the scope of this review is confined to whether Tusla was justified in refusing access, in full or in part, to the following pages of records under section 29(1) of the FOI Act: 42-51, 53-67, 69-91, 113-127, 129-151, 153-175, 176-178, 179-181, 182-185, 186-187, 206-210.

Preliminary Matters                                                                       

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, 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 applicants-™ motives for seeking access to the records 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(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not 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, this Office 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

The Records

The records at issue in this case contain a number of initial formations of a draft inspection report and initial formations of an immediate action notice created by an Early Years Inspector following an inspection of the applicant-™s childcare facility. The records also contain emails between the Inspector and Management in relation to the draft inspection report and the immediate action notice.

Section 29 -“ Deliberations of Public Bodies

Section 29(1) provides that a head may refuse to grant an FOI request: (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the head, be contrary to the public interest. Section 29(1)(a) and (b) are independent requirements and the fact that the first is met carries no presumption that the second is also met.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

Tusla states that following the conclusion of an inspection, a draft inspection report is prepared by the inspector, in consultation with their manager. It states that a copy of the draft inspection report is then furnished to the registered provider in question, who is afforded a right of reply to the content and findings of the draft inspection report. It states that a similar process is also applied to any areas requiring improvement. Tusla states that all responses received from the registered provider are considered by it in the overall determination of regulatory findings and it is only following the completion of these processes that the inspection report is finalised. Tusla states that enforcement actions are subject to oversight by the Courts. 

Tusla states that that as part of the preparation of the draft inspection report, a number of initial report formations were prepared by the early years-™ inspector involved and circulated to management for their input and observations. It states that these records contain material relating to Tusla-™s internal deliberative process such as preliminary regulatory findings and observations regarding compliance with regulations. Tusla states that it is this collaborative process between early years-™ inspectors and their managers that creates the draft inspection report that will be put to the provider.

The records at issue include formations of the draft inspection report and immediate action notice with suggestions, comments and track changes from line management and emails between the inspector and line management discussing changes to the records. I am satisfied that the gathering and weighing up of information in these initial report formations constitutes a deliberative process under section 29(1) of the FOI Act. I find, therefore, that the records relate to Tusla-™s deliberative processes. However, this is not the end of the matter as for the exemption to apply, Tusla must show that release of the records would be contrary to the public interest.

Section 29(1)(b) The Public Interest

The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, as it provides that the exemption only applies if the granting of the request would be contrary to the public interest. For release to be contrary to the public interest, this Office would generally expect the body to identify a specific harm to the public interest flowing from release. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.

The applicant states that she is not in a position to challenge what she considers to be unfair or unreasonable findings in an inspection report if she is not provided with any basis for understanding how or why those conclusions were reached. She states that given the significant harm that can be caused to her personally and to her business by negative or critical reports, there is a public interest in transparency in the process. She also submits that particular weight should be placed on transparency in the manner in which Tusla carries out its functions when the welfare of children is in question and the emphasis should be on providing as much information as is possible in the circumstances rather than seeking a rationale for a refusal. The applicant contends that in considering the public interest, the decision maker has placed too much weight on the carrying out of the regulatory functions and little or no weight on the importance of transparency in the carrying out of those functions. The applicant also contends that Tusla has not identified what harm would be caused to the public interest by the release of the documents she has sought.

Tusla acknowledges that there is a strong public interest in openness and transparency in how public bodies exercise their statutory functions. It contends, however, that this has already been served through the presentation of the draft inspection report and subsequent publication of the finalised inspection report.

Tusla contends that release of the records at issue would undermine the due process rights of registered providers, as they would not be afforded the right to check the reports for factual inaccuracies or to challenge the regulatory judgements contained in the records. It contends that release of initial formations of the reports would be contrary to the public interest in preserving the right to the good name of registered providers, given that such reports have not been adequately verified and quality assured in line with the early years inspectorate processes. Tusla also contends that if the internal exchanges contained in the records were to be released into the public domain, there may also be a deterring effect on the robustness of internal challenge between early years-™ inspectors and their managers, which it contends is a necessary component in the determination of consistent, fair and balanced regulatory judgements.

Having considered the matter carefully, I consider that release of the records at issue would be contrary to the public interest. I accept that the Tusla-™s inspection process is designed to ensure that regulatory decisions are made in a fair and consistent manner and to ensure the accuracy of findings contained in draft reports. I am satisfied that release of the records at issue would serve to undermine the integrity of the inspection process as a result of a failure to have due regard to procedural fairness and this would be contrary to the public interest. I make this finding having regard to the content of the particular records at issue in this case.

I have also considered whether any of the exceptions to section 29(1) as set out in section 29(2) apply to the records at issue and I am satisfied that none of the exceptions in section 29(2) arise in this case.

In conclusion, therefore, I find that Tusla was justified in refusing access to the records at issue under section 29(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla-™s decision. I find that it was justified in refusing access in full or in part to the records described above under section 29(1) 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.

Jim Stokes
Investigator