Whether Tusla was justified, under section 37 of the FOI Act, in refusing access to records exchanged between its HR Department and an external investigator about the investigation of the applicant-�s complaints, and whether it was justified, under section 15(1)(a), in refusing access to further relevant records

11 August 2023

Background

This review has its background in a request which the applicant made to Tusla on 14 December 2021 for records in connection with her former employment with the agency. Following discussions between Tusla and the applicant, it was agreed to divide the applicant-�s request into 12 separate requests which would be dealt with in succession. This review concerns request number 5, for all records and correspondence exchanged between Tusla-�s HR Department and a named external investigator from April 2019 until June 2020 regarding the investigation of a HR matter concerning the applicant.

On 2 December 2022, Tusla part-granted the applicant-�s request, refusing personal information of other individuals under section 37 of the Act. On 23 December 2022, the applicant requested an internal review of that decision. On 13 January 2023, Tusla affirmed its original decision. On 26 January 2023, the applicant applied to this Office for a review of Tusla-�s decision. In her application to this Office the applicant said that she wants to see all relevant records including those which explain Tusla-�s decision to engage an external consultant to investigate her complaints and those which explain the reason for stopping the investigation. 

On 21 June 2023, I provided the applicant with an update on her case, including details provided by Tusla about the searches undertaken to locate the relevant records and its explanation about why it discontinued the external investigation of the applicant-�s complaints. The applicant responded by email dated 9 July 2023.

Accordingly, I have now decided to complete my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence referred to above and submissions made by Tusla in this matter. 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 concerned with Tusla-�s decision to refused access, in full or in part, under section 37(1) of the FOI Act to records exchanged between its HR Department and a named external investigator regarding the investigation of a HR matter concerning the applicant.

Furthermore, as noted above, the applicant is seeking details of Tusla-�s decision to discontinue the external investigation of her complaints. It is Tusla-�s position that no further relevant records exist or can be located that come within the scope of the applicant-�s request in this case. This is essentially a refusal to release additional records relating to the applicant-�s request under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, this review is also concerned with whether Tusla was justified in refusing access to further records under section 15(1)(a) of the Act.

Preliminary Matters                                                                        

In reply to my email of 21 June 2023, the applicant acknowledged Tulsa-�s search efforts. However, she said that the issue is not her FOI request but rather Tusla's culture of cover-up that inevitably triggers such requests. The applicant said that had the HR manager answered her questions when asked years ago, she would never have had to make an FOI request. The applicant also said that had she been advised by the HR department on the internal processes available to her after it stopped the investigation of her complaints, she would never have had to make an FOI request. The applicant also noted her concerns that there is no written record of the communication to stop an external investigation into a serious complaint. 

It is 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. It is also important to note that the FOI Act provides for a right of access to records actually held by FOI bodies and is not concerned with access to records that a requester believes ought to exist, nor does the Act require an FOI body to create records to provide the information sought.

Furthermore, 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 applicant's 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.

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.

Analysis and Findings

The records at issue in this case concern communications between Tusla-�s HR Department and the external investigator it engaged to examine complaints made by the applicant about a number of Tusla staff. Tusla part-granted access to a number of records, redacting a large amount of information contained in the records. By their very nature these records contain information about the applicant and those staff members. The majority of the information which Tusla redacted from the records in this case concerns the individuals who were the subject of the applicant-�s complaints. The records include copies of correspondence, between Tusla and the subjects of the complaints, that had been provided to the external investigator. Tusla also refused certain information under section 37(1) of the Act about the external investigator including his work biography, his home address and his email address.

Section 37(1) -� Personal Information of other parties

Section 37(1) 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 relating to an individual other than the requester. The section does not apply where the information involved relates to the requester (subsection (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). In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) 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 fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6), i.e. personnel records of staff of FOI bodies.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position,

or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

However, the exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally and I am satisfied that this also applies to the external investigator in this case who was providing a service to Tusla.

The information redacted from the records at issue in this case comprises either personal information relating solely to parties other than the applicant or information relating to other parties which is inextricably linked to personal information relating to the applicant (joint personal information). I am satisfied that the release of the information would involve the disclosure of personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) applies.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section Sections 37(2) and 37(5).

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) 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 information would benefit the person to whom the information relates. I see no basis for finding that the release of the redacted information would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in 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-�). It is noted that a public interest should be distinguished from a private interest.

On the matter of 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 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 in both judgments 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.

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). Furthermore, unlike other public interest tests provided for in the FOI Act, there is 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 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 considering where the balance of the public interest lies, I have had regard to the fact that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. Having examined the records at issue in this case, I have been unable to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest in granting access to the personal information redacted by Tusla outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that Tulsa was justified in refusing access to the personal information of third parties contained in the records under section 37(1) of the Act.

Records about Tusla-�s decision to discontinue investigation (Section 15(1)(a))

In her application to this Office, the applicant outlines various correspondence she had received from Tusla about the decision to discontinue the investigation. The applicant said she wants to see all relevant records including those which explain Tusla's decision to engage an external consultant to investigate her complaints and those which indicate the reason for stopping it. In effect, it seems the applicant believes there ought to be further records about this decision.

Section 15(1)(a) provides that an FOI body may refuse to grant a request where the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This means that the Commissioner must have regard to the evidence available to the decision maker in arriving at their decision. 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.

Tusla provided this Office with details of its record management practices in relation to its handling of the applicant-�s complaint and the searches it undertook in an effort to locate relevant records. Tusla also provided this Office with an explanation of why it discontinued the external investigation of the applicant-�s complaints, details of which I provided to the applicant in my email of 21 June 2023. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In its submissions to this Office, Tusla said the records sought and examined were those from Tusla Employee Relations Department. Tusla said that this department are the record holders for the Dignity at Work (-�DAW-�) file which would encompass all records relating to this process with the applicant.

Tusla said that over 4000 pages of records have been examined in light of the applicant-�s FOI requests processed thus far, with numerous staff members email accounts being searched, under various search criteria. It said that as each request is processed, Tusla recheck each request which has been processed and the records which have been part of each request. It said that at the outset of each request, members of the Corporate FOI team, who have been intricately involved in the request processing and have in-depth knowledge of the records, scope, engagement and staff members involvement, due to the examination of the records, conduct a -�case conference-� style approach with the HR team, including their specified FOI researcher and General Manager, to discuss the current request, potential cross over with the previous requests, and any additional searches or staff members which may need to be conducted, or contacted as a result of the current request. Tusla said it has attempted to extend the search process as widely as possible, in light of the complexity of the processes which were undertaken internally in this regard, and the extent of the staff members that became involved in those processes. 

As noted above, the applicant has queried the lack of records about Tusla-�s decision to stop the external investigation. In its submissions to this Office, Tusla said that it determined that in order to ensure procedural fairness to all parties involved in the DAW process, it was necessary to re-conduct the preliminary screening process with regard to the complaints submitted and as such the external investigation was ceased in order for the preliminary process to commence. Tusla said that this decision was communicated to the external investigator by telephone and said that no correspondence issued to him in this regard. Tusla said the applicant was informed by registered letter on 18 December 2019 that the external investigator was no longer conducting the investigation into her complaints. A copy of this letter was released to the applicant in response to an earlier request she had made.

As noted above, the applicant has made a number of FOI requests to Tusla in connection with her former employment with the agency. This review solely concerns Tusla-�s decision on access to records exchanged between its HR Department and the external investigator as outlined in the applicant-�s request. It does not extend to any other records which Tusla may hold concerning the applicant in general or around the processing of her complaints where any such records do not fall within the parameters of the request at issue in this case.

It is important to note that 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 where records were known to have existed but cannot be found. It is also important to note that our review is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of an applicant's views as to the appropriateness or otherwise of the absence of certain records.

While I acknowledge the applicant will be disappointed by my findings in this case, I have no evidence before me to suggest further searches are warranted. On this basis, I am satisfied that Tusla has taken all reasonable steps to locate the records sought in this case. Accordingly, I find that Tusla was justified in refusing access, under section 15(1)(a) of the Act, to further relevant records on the ground that no additional records relating to the applicant-�s request in this case exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla-�s decision. I find that Tusla was justified in refusing access, under section 37(1) of the Act, to the information redacted from the records at issue. I also affirm its decision to refuse access, under section 15(1)(a) of the Act, to additional records relating to the applicant-�s request on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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.

Richard Crowley
Investigator