Whether Tusla was justified in refusing access, under section 15(1)(a) of the FOI Act, to part of an additional record relating to the applicant-�s request on the basis that no further relevant records are held

11 July 2023

Background

By way of background, all parents and guardians have a legal obligation to ensure that their child attends a school or else receives an education. If Tusla considers that a parent is failing in his or her obligation, it must send the parent a School Attendance Notice (SAN).

In a request dated 11 January 2023, which was sent to the Department of Education, the applicant sought access to all correspondence, agreements, processes, memos, guidance documents, circulars or directions within the control of the Department of Education in relation to SANs procedures under Section 25 of the Education (Welfare) Act 2000. On 12 January 2023, the Department forwarded the request to Tusla, as it was of the view that Tusla would be the appropriate FOI body to handle the request (section 12(3) of the FOI Act refers).

In a decision dated 10 February 2023, Tusla granted the applicant-�s request. It identified four records totalling 15 pages, all of which it indicated it was releasing in full. The applicant sought an internal review on 24 February 2023, on the ground that she had not received a copy of the fourth record (described as -�School Attendance [N]otice Guidance-� in the schedule of records). She also stated that she had been provided with a copy of a record with a cover note entitled -�Section 1 School attendance notices-�, and that it was unclear whether this was part of the missing fourth record. She further stated that the record released referred to a number of appendices which had not been provided. On 21 March 2023, Tusla varied its original decision. It stated that the record released was part of an internal procedural document, and that only this part of the document had been considered to be within the scope of the applicant-�s request. It said that the section of the document deemed to be relevant had been released in full. However, it indicated that it now considered that the relevant appendices were within the scope of her request and it released copies of Appendices 1 -� 9 referred to in the record concerned. On 27 March 2023, the applicant applied to this Office for a review of Tusla-�s decision on the basis that she had not received a copy of the record called -�School Attendance [N]otice Guidance-� in full. Her position was the record released was only part of the actual record listed on the records schedule as having been released in full and that the entirety of the record was within the scope of her request.

During the course of this review, the Investigating Officer asked Tusla to clarify the contents and nature of the School Attendance Notice Guidance record. In response, Tusla said that the applicant had been provided with an extract from a guidance document entitled -�Education Welfare Services Legal Procedures, 2018-� (hereafter -�the document-�). It said that this extract comprised Section 1 of the document and nine related appendices. It said that these parts of the document were extracted and released on the basis that Tusla deemed these parts to be within the scope of the applicant-�s request. Tusla said that Section 2 of the document (as well as the relevant related appendices) concerned legal proceedings. It stated that as not every case where a SAN was issued was -�escalated to this level-�, these parts of the document were outside the scope of the request. The Investigating Officer provided the applicant with details of Tusla-�s submissions regarding the scope of her request and invited her to make submissions. The applicant made submissions to this Office in response.  

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 correspondence between the applicant and Tusla as described above and to the correspondence between this Office and both parties on the matter. 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

As noted above, the applicant was of the view that TUSLA had withheld part of a record within the scope of her request. As also noted above, Tusla-�s position was that the remainder of the document at issue (i.e. section 2 and further appendices) were not within the scope of the applicant-�s request. This is, essentially, a refusal to release additional relevant records under section 15(1)(a) of the FOI Act.

The scope of this review is therefore concerned solely with whether Tusla was justified in refusing, under section 15(1)(a) of the FOI Act, access to a further record in part relating to the applicant-�s request on the ground that no further relevant records were held by it.

Analysis and Findings

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. The Commissioner's 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 his/her decision and also 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.

In this case, it also seems to me that the content and context of the remaining information in the document concerned is relevant in considering whether it comes within the scope of the applicant-�s request.

Tusla-�s Submissions

In its submissions to this Office, Tusla provided a copy of the full document to this Office for the purposes of this review. Section 1 and Appendices 1 -� 9 are concerned with SANs. Section 2 and Appendices 10 -� 21 are concerned with legal proceedings.

Tusla said that the document includes matters arising after the issuing of a SAN and sets out advice on enforcement processes and legal considerations. As noted above, Tusla-�s position is that not every case where a SAN is issued proceeds to enforcement and that accordingly, it did not consider the remainder of the document to be within the scope of the request.

Tusla said that the document concerned was compiled to provide guidance to its staff on the legal parameters and practices that govern work undertaken in ensuring compliance with the Education and Welfare Act, 2000. It said that the aim of the document was to provide clear, step-by-step guidance to Educational Welfare Officers serving SANs, or bringing legal proceedings, including the issuing of summonses, before the Courts. It said that it identified the parts of the record it deemed to be concerned with SANs and released those parts on the basis that they were within the scope of the applicant-�s request.

Tusla also stated that if the entire document was found to be within the scope of the applicant-�s request, it was of the view that sections 31(1)(a) and/or 32(1)(a)(ii) of the FOI Act would apply to certain parts of the remaining information.

Applicant-�s Submissions

Essentially, the applicant-�s position was that Section 1 of the document concerned the issuing of SANs and Section 2 of the document concerned SANs that escalated to legal proceedings. She was of the view that the wording of her FOI request would include all cases where a SAN issued, in other words cases that are the subject of legal proceedings, and those that are not. She was of the view that the information withheld referred to legal proceedings that form part of the SAN process. The applicant was of the view that the entire document was within the scope of her request and that she had only been granted partial access to it.

Conclusion

I have carefully considered the content of the information concerned, as well as the wording of the applicant-�s request. In her original request, she sought access to various records -�in relation to SANs Procedures-� under Section 25 of the Education Welfare Act 2000. Section 25 relates to the issuing of SANs. However, it also sets out details of the fines and/or other penalties applying to individuals who do not comply with a requirement in a SAN. While I accept that the applicant did not specify records relating to enforcement matters arising after a SAN is issued, I am satisfied that she did not exclude such records either. It seems to me that Tusla has taken an unduly narrow interpretation of the applicant-�s request.

In the circumstances of this case, I am satisfied that the entirety of the document falls within the scope of the applicant-�s request. Accordingly, I find that Tusla was not justified in refusing access to the remainder of the record sought on the basis that no further records or parts of records existed relating to the applicant-�s request. I annul its effective refusal to release additional information under section 15(1)(a) of the FOI Act.

However, that is not the end of the matter. As noted above, Tusla said that if it were to consider the remainder of the document to be within the scope of the applicant-�s request, it was of the view that some exemptions would apply to certain information contained in the record.  

In the circumstances, I cannot simply direct the release of the full record where Tusla has indicated that it may contain some exempt information. It seems to me, therefore, that the most appropriate course of action is to annul Tusla-�s decision, the effect of which is that it must consider the applicant-�s request afresh and make a new, first instance decision. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with Tusla-�s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul Tusla-�s decision to refuse access, under section 15(1)(a), to further records relevant to the applicant-�s request. I direct Tusla to consider the request afresh.

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