Whether Tusla was justified in refusing access to certain information contained in a 2006 report relating to the applicant's child under section 37(1) of the FOI Act

9 November 2023

Background

All references in this decision to the applicant shall be read as references to the applicant or her legal representative, as appropriate. In a request dated 19 January 2023, the applicant sought access to a copy of a 2006 report relating to her child, as well as all records related to this matter and to the child in question. On 15 February 2023, Tusla issued an original decision wherein it granted access to the records sought in part, on the basis of section 37(1) of the FOI Act. On 13 April 2023, the applicant applied for an internal review of Tusla's decision. On 2 May 2023, Tusla affirmed its original decision. On 5 May 2023, the applicant applied to this Office for a review of Tusla's decision. In her application for a review, the applicant stated that she sought the information withheld "in order to enable her to provide the best care"� for her minor child.

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 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

This review is solely concerned with whether Tusla was justified in its decision to refuse to release the records sought in part, under section 37(1) of the FOI Act.

Preliminary Matters                                                                        

It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Finally, section 25(3) of the FOI Act requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the information withheld.

Analysis and Findings

Section 37(1)

The records concerned are comprised of eight pages, containing two referral sheets on different dates in 2006, a closure summary sheet, a two-page fax cover sheet, two copies of a Social Work Report sent to the relevant Principal Social Worker and a copy of her response. A small amount of information has been withheld in this case. Tusla granted access to the closure summary, page two of the fax cover sheet and the letter in full. It refused access to the remaining pages in part, on the basis of section 37 of the FOI Act. For the benefit of the applicant, I should state that the fact that a requester may be aware of the nature of the information withheld or may have even provided the information to the FOI body does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 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 member 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 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.

In its submissions regarding section 37(1), Tusla stated that it was satisfied that the information withheld was the personal information of individuals other than the applicant, and her child, who is still considered a minor. I have examined the records at issue. As I have noted above, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the records at issue. However, I do not believe that I am in breach of section 25(3) by saying that the records in this case concern a social work referral about a family matter. Tusla released the majority of the information contained in the records and redacted a small amount of information in the records about family members other than the applicant and her minor child. In the circumstances, I am satisfied that such information comprises personal information relating to other parties, who are not minor children, and that the release of that information would involve the disclosure of personal information relating to those third parties. Accordingly, I find that section 37(1) applies to the information withheld from release.

However, the matter does not end these as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.

Section 37(5)

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 request would benefit 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 parties mentioned in the records, nor is it apparent to me how release would do so. I am satisfied that section 37(5)(b) of the FOI Act does not apply in this case.

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.

All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.

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 its submissions to this Office, Tusla stated that there was a public interest in members of the public knowing that the information held by public bodies about them, or those they represent, is accurate. I note that the applicant did not identify any specific public interest factors in favour of the release of information withheld. However, I understand from correspondence provided to this Office that the applicant is seeking access to the information withheld in order to provide care for her minor child and to ensure that all concerns raised in the records are addressed. In her application for a review to this Office, she also stated that the release of the records sought in full would be in the best interests of her child. 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 parents and guardians having access to information relating to their children held by public bodies, in order to provide for their welfare.

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 its submissions to this Office, Tusla stated that there was a strong public interest in protecting the right to privacy of the individuals named in the records sought. It described the information withheld as sensitive, and contended that the public interest in the continued protection of such information and in protecting the privacy of the individual(s) concerned outweighed the public interest that would be served if records of this nature were released.

I have had close regard to content of the records at issue. I am satisfied that in the most part, the information withheld comprises the names of other individuals. There is also some limited private information withheld relating to a sensitive matter. I am also satisfied that the specific information withheld relates to family members other than the applicant and her minor child.

While I accept that the release of the records at issue in full would serve to somewhat enhance transparency around the information held by Tusla about the applicant's family, it seems to me that the degree of enhancement would be quite limited. Furthermore, it appears to me that Tusla has sought to release as much information as possible to the applicant, while still seeking to protect the privacy rights of the third parties concerned. While not all of the information withheld appears to be of a particularly sensitive nature, I am conscious that I am not aware of all the circumstances surrounding the creation go the records concerned. Furthermore, I must regard the release of the information sought as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the information at issue outweighs, on balance, the privacy rights of the third parties concerned. I find, therefore, that section 37(5)(a) does not apply and that Tusla was justified in refusing access to the information withheld on the basis of 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 to withhold certain information under section 37 of the FOI Act. I find that the public interest does not, on balance, favour the release of the information concerned.

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