Whether Tusla was justified in refusing access to records relating to the applicant-�s time in foster care on the basis of sections 31(1)(b) and 37(1) of the FOI Act

19 July 2023

Background

In a request dated 30 July 2021 the applicant, who had been placed in foster care as a child, sought access to all records relating to him as held by Tusla. 

On 3 September 2021 Tusla issued its decision.  It identified 883 records, broken down into eight files, as falling within the scope of the applicant-�s request.  It said that these records were identified following searches of Tusla Midlands and Tusla South.  It refused access to parts of these records as falling outside the scope of the applicant-�s request.  It also refused access to parts of the records on the basis that section 31(1)(b) and 37(1) applied to the information. 

In a letter received in Tusla on 29 August 2022 the applicant sought a review of this decision.  Despite being outside the time period to request such an internal review, Tusla agreed to process it.  On 10 November 2022 the internal reviewer issued his decision in which he upheld the original decision. 

On 25 January 2023, the applicant applied to this Office for a review of Tusla-�s decision.  In submitting his application the applicant specifically referred to the decision with respect to five files (D050436, D050437, D050438, D050439 and D050440) corresponding to Files 1-5 in Tusla-�s decision.    However, following contact with the applicant he confirmed that his appeal to this Office encompassed all eight files referred to in Tusla-�s original 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 his 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

Tusla indicated that it has refused access to the following parts of the records on the basis that they fall outside the scope of the applicant-�s request:

• File 1: pages 16, 21-22, 29, 36-42, 51, 53, 88-93, 100, 104, 106, 110, 113, 146, 163, 174-176, 179-182 and 192
• File 2: pages 7-12, 17-18, 20-35, 39-42, 44-61, 65, 67, 69-71, 81, 83, 85-91, 93-105, 107-109, 111-115, 118-120, 122-125 and 127-128
• File 3: pages 3-4, 6-10, 22, 28, 34, 48, 53, 66, 69-74, 76, 79, 87, 90, 93-96 and 98-104
• File 4: pages 3-5, 7, 14-15, 24-30, 33-34, 37-38, 40, 43-45, 47, 51, 53, 55-56, 64, 68, 73, 78, 80-82, 84-89, 91, 93, 96-98, 102, 104, 108 and 110
• File 5: pages 3-4, 6-17, 19, 21-38, 40-45 and 48-62
• File 6: pages 1-2, 4-10, 12, 14, 16, 18-45, 49-78, 80-85, 87-88, 90-111, 116-124, 127-128, 132-139, 142-143 and 146-160
• File 7: pages 1-26, 28-30, 32, 34, 36-38, 40, 42, 47, 49, 55-56, 61, 62, 66, 68, 71, 73, 78, 81, 83, 88, 90-91, 94, 95-96, 98, 100, 105-111 and 117-118

Having examined these records, I am satisfied that the above records fall outside the scope of the applicant-�s request and I do not need to consider them further as part of this review. 

In addition, Tusla have indicated that certain pages of records are duplicates of other records.  Having examined these pages, I am satisfied that this is indeed the case and I therefore consider that it not necessary for me to consider the following as part of my review:

• File 1: pages 73, 74, 75, 76, 77, 82 and 197
• File 4: pages 19, 20 and 21
• File 7: pages 112 and 113

This review is therefore concerned solely with whether Tusla was justified in refusing access, under sections 31(1)(b) and 37 of the Act, to the remaining information in files 1-8. 

Preliminary Matters

Before I consider the substantive issues arising, I would like to make four preliminary comments.

First, section 13(4) of the FOI Act provides that in deciding whether to grant or to refuse a request, any reason that the requester gives for the request shall generally be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question in this case, 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.

Secondly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the records at issue and of the reasons for my findings are limited in this case.

Thirdly, 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. Our role is confined to a consideration of the decision made on the FOI request.

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

Section 31(1)(b) - Contempt of Court

Tusla has refused access to information on the following pages on the basis of section 31(1)(b):

• File 1: pages 56-67, 84, 86, 87, 94-96, 98 and 103
• File 2: pages 3, 5, 19, 62, 64, 68, 75, 78, 80, 84, 110 and 126
• File 3: pages 12, 23, 65, 85 and 91-92
• File 4: pages 9, 11, 12, 13, 16, 18, 35, 36, 46, 52, 57, 58, 59, 62, 67, 70-71, 72, 74, 76-77, 83, 92, 94, 106-107 and 111
• File 5: pages 5 and 47
• File 6: pages 79, 125, 140 and 144
• File 7: pages 87, 101-104, 114 and 116

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.

In his application to this Office, the applicant has argued that he was the subject of the court proceedings and this should be a materially relevant factor. 

In its submission to this Office, Tusla said that the nature of childcare proceedings is such that they are heldin camerato protect the individuals before the court, in circumstances where the court is closed to the public.   Its position is that section 31(1)(b) applies as the disclosure of the documents would constitute contempt of court.

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).

Having reviewed those parts of the records which have been refused on the basis of section 31(1)(b), I am satisfied that they relate to court proceedings heldin camera.   It is not relevant whether the applicant was a party to such proceedings or the subject of some 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 records, or parts of records, referred to above.  

Section 37(1) -� Personal Information

Tusla has refused access to the remaining information in the records on the basis that the information at issue is exempt under section 37(1) or 37(7) of the FOI Act.

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. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

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. These categories include (i) information relating to the educational, medical, psychiatric or psychological history of the individual; (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; (xiv) the views or opinions of another person about the individual.

In its submissions to this Office, Tusla said that, as was the norm with files in the past, whole family records were contained within one file and therefore, following the applicant-�s request, it was necessary to refuse access to a large amount of personal information relating to individuals other than the applicant.   In addition, Tusla said that a number of the records contain joint personal information and it took the view that it was impossible to release parts of these records without disclosing the personal information of persons other than the applicant. 

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. The information withheld is either the personal information of third parties or personal information relating to the applicant that is intertwined with the personal information of third parties. In theory, one could extract certain words or phrases from these records, which relate solely to the applicant. However, those parts appear in the context of other information relating to third parties. Having regard to section 18 of the FOI Act, I conclude that to release such versions of the records would be misleading. In addition, I consider that even if names were to be redacted, the individuals would be identifiable from the content of the records. 

I am satisfied that the release of the information would, in all instances, 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 which I examine below.

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 arises 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 grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

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. Accordingly, I will now address whether or not section 37(5)(a) of the FOI Act applies in this case.

In his application to this Office, the applicant said that he is seeking to obtain as much information as possible regarding his time in foster care as a child.   In its submission, Tusla said that the records at issue are complex, sensitive social work records.  It said that members of the public have an expectation of confidentiality when interacting with social services staff.  Tusla said while it accepts that the applicant has a deep wish to obtain as much information as possible about his early years, the records at issue contain enormously sensitive information about complex family issues and there were no grounds to set aside the privacy rights of such third parties in this case.   Tusla also said that it must have regard to the fact that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large.

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 inThe 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 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 inThe 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.

In this case, I accept that there is a public interest in openness and accountability in relation to the manner in which TUSLA carries out its functions, including how it deals with the placement of children in foster care. There is also a public interest in members of the public knowing that information held about them by public bodies is accurate. On the other hand, there is a public interest in members of the public who engage with TUSLA being able to communicate frankly and in confidence in relation to personal or sensitive matters. I acknowledge that the applicant is anxious to have access to all of the information concerning his time in foster care; however, the fact that TUSLA has already released certain information in the records goes some way towards serving the public interest in accountability. 

It seems to me that in this case, TUSLA sought to provide as much information as possible in relation to the applicant while simultaneously seeking to protect the privacy rights of other parties. The information at issue is of an inherently private and sensitive nature. As mentioned above, I am cognisant of the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put. 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 to 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 TUSLA 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 Tusla-�s decision. I find that it was justified in refusing access to the information in the relevant records on the basis of sections 31(1)(b) and 37(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.
 

Mary Connery

Investigator