Whether Tusla was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records concerning the applicants and their child on the basis that no further records exist or can be found

21 December 2023

Background

This case has its background in what the applicants' describe as a "malicious report" that was made to Tusla in relation to their child.

In a request dated 17 August 2022, the applicants sought access to all records held by Tusla relating to them and to their child from 27 July 2022. In a decision dated 12 October 2022, Tusla granted the applicants' request in part. It released a number of records, subject to the redaction of a small amount of information under sections 37(1) and 42(m)(i) of the FOI Act. On 20 January 2023, following the applicants' request for an internal review, Tusla varied its original decision, by adding and removing certain redactions it had applied to the records that accompanied its original decision. It said that there was a video recording on a phone that was shared with the local Tusla Social Work service by the person who reported the family. Tusla said that this recording remains with the original reporter and is "not accessible for FOI purposes".

On 11 July 2023, the applicants applied to this Office for a review of Tusla's decision. In their application, the applicants said they are seeking access to a number of video recordings that were taken of their child and the transcript of the phone call in which the report was made.  In subsequent correspondence with this Office's Investigating Officer, the applicants confirmed that this review may be confined to considering the adequacy of Tusla's searches for records covered by their request, and again referred to the video/audio recordings they are seeking.

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 the applicants and Tusla in support of its decision and to communications between this Office and the Tusla on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicants consider further records relating to their request should exist and, in particular, are seeking access to video and audio recordings which they believe to be held by Tusla. While Tusla acknowledged the existence of a video recording in its internal review decision, it did not locate the recording or identify any further records for consideration apart from those identified in its initial decision. This is, in essence, a refusal to grant access to additional relevant records under section 15(1)(a) of the FOI Act on the basis that no further records exist or can be found.

Accordingly, this review is concerned solely with whether Tusla was justified in refusing, under section 15(1)(a) of the Act, the applicants' request for further records relating to them and their child, apart from those already released.

As the applicants did not seek a review of the redactions made to the records released to them by Tusla, I have not considered these redactions in this review.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the 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 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. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.  

During the course of the review, when inviting submissions on the matter, the Investigating Officer brought to the attention of Tusla the comments made by the applicants in their application to this Office, which concern the existence of video recordings and a transcript of a phone call. In its response, Tusla confirmed that it had located a video recording relating to the applicants' request. It said that this recording was not available for review at the time the request was processed, but that a transcript of the recording had since been uploaded to the National Child Care System (NCCIS) within Tusla. It indicated that it would be willing to release the transcript of the recording, subject to any applicable exemptions under the FOI Act.

The review before this Office solely relates to the decision of Tusla to effectively refuse the applicant's request under section 15(1)(a) of the FOI Act on the basis that further records do not exist or cannot be found. What I must consider is whether Tusla took reasonable steps to locate the records sought or whether it has satisfied me that they do not exist or that it does not hold the records sought. As it has since confirmed that further records falling within the scope of the request exist, I simply cannot find that the Tusla was justified in refusing the applicants' request under section 15(1)(a).

Accordingly, I find that Tusla was not justified in effectively refusing the applicants' request under section 15(1)(a) of the Act and I annul its decision in this regard. However, I do not believe that it would be appropriate to simply direct the release of the records concerned where no consideration has been given by Tusla as to whether they should be released, other than stating that it would provide the applicants with the transcript, "subject to any exemptions which may be deemed applicable". It is not appropriate that this Office should be a first instance decision maker to determine what information, if any, might qualify for exemption.

In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decision of Tusla to refuse further relevant records coming within the scope of the applicants' request, the effect of which is that it must consider the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicants will have a right to an internal review and a review by this Office, if they are unhappy with Tusla's new decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul Tusla's effective reliance on section 15(1)(a) and direct it to undertake a fresh decision-making process on the applicants' FOI request.

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