Whether the HSE was justified in refusing access to a Child Welfare Protection Report (the Report) under sections 35(1)(a) and 37 of the FOI Act and to further records relating to the applicant under section 15(1)(a) of the FOI Act

10 November 2023

Background

The applicant in this case was initially represented by her solicitor, while her application to this Office was made on her own behalf. All references to the applicant in this decision should be read as relating to the applicant or her representative, as appropriate.

The applicant is of the view that a third party, who is a client of a specified regional Mental Health Service (the Service), made an allegation about her which was reported to Tusla by the third party's social worker. In a letter dated 22 March 2022, the applicant sought access to all information relating to her held by the Service. The HSE failed to issue a decision, and the applicant sought an internal review on the basis of a deemed refusal on 25 July 2022. Following additional correspondence between the parties, I understand that a meeting took place between the applicant and the HSE on 8 December 2022, regarding the subject matter of the request. The HSE issued its internal review decision on 13 January 2023, which identified one record relating to the applicant's request (the Report). The HSE refused access to the Report under section 35(1)(a) of the FOI Act. On 10 February 2023, the applicant applied to this Office for a review of the HSE's decision.

In her application for review, the applicant referred to a letter from the HSE which stated that "there is a large volume of information to be gathered and considered"� in relation to her request. However, while the HSE's internal review decision referred to "some of the records"�, in subsequent correspondence with this Office it clarified that the Report was the only record located. Its position was that it held no other records relating to the applicant's request. As it appeared that section 15(1)(a) of the FOI Act might be relevant, the Investigating Officer sought submissions from the HSE on the steps taken to locate relevant records in this case, as well as its reliance on section 35(1)(a).

During the course of this review, the Investigating Officer provided the applicant with details of the HSE's submissions wherein it outlined the searches undertaken to locate any further records and its reasons for concluding that no additional records relating to her request existed or could be found within the HSE. The Investigating Officer initially informed the applicant of her view that section 42(m) might apply. In her response the applicant indicated that she had no comment to make. The Investigating Officer subsequently informed the applicant of her view that section 37 of the FOI Act was relevant and invited her to make further submissions or comments on the matter. The applicant has not responded to date.

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 to date. 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

Firstly, while the HSE created some confusion in its internal review decision regarding what records were released and how, it has since been clarified that there was one relevant record (the Report) that was refused in its entirety and its position is that it holds no other relevant records. As noted above, the applicant queried this position.

While the HSE refused access to the Report under section 35(1)(a), I agree with the Investigating Officer that section 37 is of relevance in this case. Section 37 is a mandatory exemption, which provides that an FOI body shall, subject to the other provisions of section 37, refuse to grant an FOI request if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester.

A review by this Office is considered to be "de novo"�, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the de novo nature of our reviews, I consider it appropriate to consider the applicability of section 37 to the information at issue, notwithstanding the fact that the provision was not relied upon by the HSE as a ground for refusing the request.

Accordingly, this review is solely concerned with whether the HSE was justified in refusing access to the Report under sections 35 and 37 of the FOI Act, and whether it was justified in its effective decision to refuse access, under section 15(1)(a), to further relevant records on the ground that no additional relevant records exist or can be found.

Preliminary Matters                                                                       

Before I address the substantive issues arising in this case, I wish to make the following preliminary comments.

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. This Office also has no remit to investigate how the HSE handled any aspect of the FOI process in this case. However, I should state that the length of time it took the HSE to process the applicant's request was wholly unsatisfactory and fell well below the required standards. As noted above, the HSE failed to issue an original decision, and did not issue an internal review decision within the required timelines under the FOI Act. I understand that it engaged in lengthy correspondence with the applicant which led to a meeting in December 2022. However, this was more than eight months after her initial request. Furthermore, both its internal review decision and schedule of records contributed to confusion as to what records had been located and whether they had been redacted or withheld in full. Given the sensitive nature of the background to the request, as well as the length of time the HSE has been subject to the FOI Act, I would expect greater diligence in processing a request of this nature.

Section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. 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.

Finally, 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. This means that the extent to which I can describe the contents of the record at issue is limited.

Analysis and Findings

Sections 37(1) and 37(7)

Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information, including personal information relating to a deceased individual. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. The section does not apply where the information involved relates solely to the requester (subsection (2)(a) refers).

However, section 37(7) provides that, notwithstanding subsection (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 while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies. It is also important to note that the fact the applicant may be aware of the identity of the other party(s) does not mean that the information cannot be protected under section 37(1).

Mindful of the provisions of section 25(3), I cannot provide a detailed description of the record, other than to state that it is a Child Protection Welfare Report submitted by a social worker containing details of an allegation made by a third party. It contains information relating to the applicant, her children and other members of her family, as well as the third party concerned.

I have examined the record carefully and I have had regard to the specific wording of the applicant's request, which solely sought information relating to her. I am satisfied that the release of the record in full would involve the disclosure of personal information relating to individuals other than the applicant, as well as joint personal information concerning the applicant and third party(s). Having regard to section 18 of the FOI Act, I am also satisfied that attempting to extricate information that relates solely to the applicant would result in release of a version of the record that would be misleading. In addition, I consider that even if names were to be redacted, the individual(s) would be identifiable from the content of the records. Accordingly, I find that section 37 applies to the information contained in the Report.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) provides that 37(1) does not apply if (a) the information contained in the record 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. No argument has been made that the circumstances outlined above are relevant in this case and I am satisfied that they do not apply. Having considered the matter, I find that section 37(2) does not apply.

Section 37(5)

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. No argument has been made that the release of the records to the applicant would benefit the third party concerned, nor is it apparent to me how release would do so. I find that section 37(5)(b) does not apply.

Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, it is important to note that the release of records under the FOI Act must be 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 can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet case"�). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure"�. Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In this case, the applicant did not identify any specific public interest factors in favour of the release of the record at issue that might outweigh, on balance, the privacy rights of the third party concerned. However, I note from her original request that she is of the view that any allegations contained in the Report are false and should not have been acted on by the HSE. She also indicated that the circumstances surrounding the Report and related matters have caused great stress to her and her family. However, it is not a matter for this Office to consider the appropriateness or otherwise of the HSE's referral of the matter to Tusla.

While the applicant has essentially expressed a private interest for seeking access to the records, it seems to me that her reasons for seeking access to the records are reflective of a public interest in individuals knowing what information is held by public bodies about them and whether it is accurate. It could also be reasonably interpreted as an argument that there is a public interest in knowing how Tusla and/or the HSE is carrying out its functions in dealing with child protection matters.

On the other hand, 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). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

In this case, the request is for a report based on an allegation reported to a social worker. I note the sensitive and personal nature of the work of the Mental Health Service and of Tusla in this regard. While section 25(3) prevents me from disclosing any further details, I consider that the information at issue in this case is of an inherently private and sensitive nature, such that release of the information would have an impact on the privacy of the third party that goes to the core of the protection of that right. In my view, it is an important aspect of the right to privacy that persons engaging with the HSE or Tusla on personal or sensitive matters can do so frankly and in confidence.

While I accept that the release of the record at issue would serve to enhance transparency around the HSE's handling of the matter or on Tusla's investigation into the allegations concerned, it seems to me that the degree of enhancement would be quite limited. Furthermore, I understand from the applicant's original request that she is aware of the details of the allegation and that Tusla's file in the matter has since been closed.

On the other hand, I am satisfied that the release of the record at issue would reveal details of an inherently sensitive and private nature about a third party and I must regard their release as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest served by releasing the record sought outweighs, on balance, the strong privacy rights afforded to the individual in question due to the sensitivity of the information concerned. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the HSE was justified in refusing access to the Report under section 37(1) of the FOI Act.

Section 15(1)(a)

Section 15(1)(a) of the FOI 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 their decision and 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.

As noted above, the HSE provided this Office with details of the searches it said it undertook in an effort to locate relevant records in this case and its reasons for concluding that no further records exist or can be found. As also noted, the Investigating Officer provided the applicant with an outline of the HSE's submissions in this regard. 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, the HSE said that it searched records held on a file relating to the third party. It said that the file is maintained in hardcopy format, and therefore physical searches were conducted to locate relevant records. It stated that searches were conducted by both the former General manager in Mental Health and the Area Administrator for Mental Health. The HSE said that it also contacted the Social Worker who generated the Report as well as the relevant Principal Social Worker. It stated that no follow-up correspondence was received by the Social Worker from Tusla, nor was any further correspondence sent to Tusla regarding the matter. The HSE said that the Report was uploaded directly to a portal and therefore no records of correspondence such as an email or letter would exist. It further said that Tusla did not usually correspond with the HSE once a referral was received. The HSE's position is that the applicant is not a client of the Service and that the Report was the only record located relating to her.

I have had regard to the HSE's details of the searches carried out as well as to its explanation as to why it believes that no further records exist or can be found held by the HSE relating to the applicant's request. In the circumstances of this case, and in the absence of any substantive arguments or evidence to the contrary, I am satisfied that the HSE has taken all reasonable steps to ascertain the whereabouts of additional records relating to the applicant's request. Accordingly, I find that the HSE was justified in refusing access to further relevant records on the basis of section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision. I affirm its decision to refuse access to the Report under section 37 of the FOI Act. I also affirm its effective decision to refuse access, under section 15(1)(a), to further relevant records on the ground that no additional records relating to the applicant's request exist or can be found.

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