Whether Tusla was justified in refusing access to part of a record relating to a complaint it received about the applicant on the basis of section 42(m) of the FOI Act

27 January 2023

Background

In a request received on 1 September 2022, the applicant sought access to any details of the person(s) who made a report to Tusla concerning her. On 28 September 2022 Tusla issued a decision refusing the request under section 42(m) of the FOI Act. On 8 October 2022, the applicant made an internal review request wherein she outlined the impact the report had on her and her family. On 7 November 2022, Tusla issued its internal review decision wherein it affirmed its refusal of the request.

On 14 December 2022, the applicant sought a review by this Office, including copies of reference letters in support of her application. 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 to the comments made by the applicant in her application to this Office. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether Tusla was justified in refusing access to the withheld information on the basis of section 42(m) of the FOI Act.

Preliminary Matters

I am conscious of the fact that the matters to which the records relate and the process of trying to access as much information as possible have caused upset and stress to the applicant. While I appreciate that it is very important to her that she would have access to the information concerned, my role is confined to making a legally binding decision on whether the FOI Act entitles her to have access to the withheld records.

It is also important to note that while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. 

Analysis and Findings

Tusla relied on subsections 42(m)(i) and (ii) to refuse the applicant-™s request in this case. I consider section 42(m)(i) to be most relevant, so I will consider its application first.

Section 42(m) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal the identity of a person who provided information in confidence or the source of such information.

Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession.

Essentially, section 42(m)(i) provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law, in order to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. The second is that the information provided must have been provided in confidence, while the third is that the information provided must relate to the enforcement or administration of the law.

First requirement

As noted above, I must take all reasonable precautions to prevent the disclosure of exempt information in the course of a review. Accordingly, while I am constrained in the extent of the detail I can give, having reviewed the records in full, I am satisfied that the release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the person who supplied the information to Tusla. I am satisfied that the first condition is met.

Second requirement

The second requirement is that information must have been provided in confidence. Tusla has provided this Office with evidence that the source(s) provided the information in confidence. This Office accepts, as a general proposition, that the purpose of section 42(m)(i) is to protect the flow of information from the public which FOI bodies require to carry out their functions relating to the enforcement or administration of the law and that the disclosure of the identities of complainants could reasonably be expected to have a detrimental effect on other people giving such information to those bodies in the future.

Having reviewed the records and the information referenced above, I am satisfied that the information was provided in confidence in this case. Accordingly, I am satisfied that the second condition is met.

Third requirement

The third requirement is that the information provided relates to the enforcement or administration of the law. Tusla said that the relevant legislation in this case is the Child and Agency Act 2013 and the Child Care Act 1991. It said that the information provided related to child protection concerns, and its statutory functions under the aforementioned Acts. In the circumstances, I am satisfied that the third requirement is met in this case.

Having found that each of the requirements for section 42(m)(i) are met, I find that Tusla was justified in refusing access to the information sought under that section. As I have found section 42(m)(i) to apply, I do not need to consider Tusla-™s reliance on section 42(m)(ii).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla-™s decision to refuse the applicant-™s request for details of the person(s) who made a report about her under section 42(m)(i) 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.

Sandra Murdiff
Investigator