Decision
Ms and Tusla: Child and Family Agency
From Office of the Information Commissioner (OIC)
Case number: OIC-147758-Y1K9T6
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Cite as: [2024] IEIC 147758
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Whether Tusla was justified in refusing access, under section 37(1) of the FOI Act, to information it withheld from a child welfare referral it received and whether it was justified in refusing access, under section 15(1)(a) of the Act, to further relevant records on the ground that no such records exist
3 September 2024
This case arises from a letter dated 15 December 2023 which the applicant received from Tusla informing her about a child welfare report it had received in relation to her child. Tusla said that the matter had been closed at screening stage and required no further action.
In a request dated 21 December 2023, the applicant sought access to the child welfare referral mentioned in Tusla's letter of 15 December 2023. In a decision dated 3 January 2024, Tusla part-granted the applicant's request. It released a copy of a Child Protection Welfare Report (the Report), refusing access to certain information in the Report under section 37 of the FOI Act. On 12 January 2024, the applicant requested an internal review of Tusla's decision looking for a copy of the full details of the allegations made against her. On 13 February 2024, Tusla affirmed its original decision. In a letter dated 7 March 2024, the applicant applied to this Office for a review of Tusla's decision. In her application for review, she said that Tusla had part-released a report to her stating that there were allegations made against her in relation to her son. She said that Tusla had not disclosed other allegations to her or where these allegations had originated from, and that in a court of law, the accuser would have to state all accusations against the accused. She said that she should have access to the full extent of these allegations as well as their origin.
As the applicant had expressed a view that she had not received access to all relevant records, the Investigating Officer invited Tusla to make submissions on the matter. Tusla provided details of the reasons why it concluded that no further records exist. During the course of this review, the Investigating Officer provided the applicant with details of the submissions received from Tusla and offered her an opportunity to make further submissions. No further submissions have been received 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 correspondence outlined above and to the submissions made by both parties. I have also examined the redactions made by Tusla to the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether Tusla was justified in refusing access to the information it withheld from the Child Protection Welfare Report under section 37 of the FOI Act and whether it was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records that come within the scope of the applicant's original request on the ground that no additional records exist.
First, it is important to clarify 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.
Secondly, section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.
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. In such cases, the role of this Office 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 I 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 the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are not created, are lost or simply cannot be found.
As noted above, during the course of the review, this Office requested and received submissions from Tusla in relation to its reasons for concluding no further records exist, details of which were provided to the applicant. While I do not propose to repeat the details in full here, I confirm that I have had regard to them for the purposes of this review.
In its submissions to this Office, Tusla said that, as the applicant had sought access to a referral letter of a specified date, it had released the Report in redacted form as it was the referral received on the specified date. It said the referral was received through its Report Portal, which is accessible through its website. Tusla said that no other documentation was received with the Report, and that while reports/referrals can also be made in person by post or telephone to the local Social Work Duty Service in the area where the child lives, or by Garda Notification letter, this did not take place in this instance.
Tusla said that once a referral/report has been made certain records may be generated. It said that one of these is a Screening record. It said that if there are no reasonable grounds for concern/no harm identified, then no further action is required and the referral is closed. Tusla said this was the outcome for the referral in this case. Tusla said that another record that may be/is generated is a closure letter, which is completed and sent out to each relevant party if the case is closed.
In its submission, Tusla said that this case was closed at the screening stage and the referrer received a closure letter. It said that this was the only correspondence or contact that it had with the referrer after the referral was received through the Report Portal. Tusla said that, as the applicant's request was solely for the referral, it considered the Screening record and closure letters to be outside the scope of the applicant's request. As noted above, the applicant's request was solely for a copy of the referral which Tusla received. Accordingly, I accept Tusla's position that the screening record and closure letters fall outside the scope of her request.
It appears from her application to this Office, that the applicant believes she has not been made aware of all the allegations made against her. I note that the copy of the Report released by Tusla to the applicant contains details of the child welfare concerns reported to Tusla. For the benefit of the applicant, I can confirm that the information redacted by Tusla from the report concerns the identity of the referrer, which I will consider below, and that full details of the concerns raised in the referral report have been released to the applicant.
As noted above, the applicant was provided with details of Tusla's submissions and was invited to make further submissions to this Office in response. No response was received. Having had regard to Tusla's submissions, and in the absence of evidence to suggest otherwise, I am satisfied that Tusla has adequately explained why no further relevant records exist in this case. In the circumstances, I find that Tusla was justified in refusing access, under section 15(1)(a) of the FOI Act, to further relevant records relating to the applicant's request on the grounds that no such records exist.
Sections 37(1) and 37(7)
As noted above, Tusla redacted certain information, under section 37(1) of the Act, from the record it released to the applicant. That section provides that, subject to the other provisions of section 37, an FOI body shall refuse an FOI request if access to the record concerned would involve the disclosure of personal information.
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 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
Section 37(1) of the Act does not apply where the information 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. This is commonly known as joint personal information.
The information redacted by Tusla from the Report includes the name, address and contact details of the person who made the referral to Tusla. In correspondence with this Office, the applicant said she believes she may already know the identity of the person who submitted the Report and that in a court, an accuser would have to face the accused. I wish to note for the benefit of the applicant that the fact that certain third party personal information may be known to a requester does not change the fact that such information may be exempt from release under the FOI Act.
While a very small amount of the redacted information at issue may be regarded as joint personal information, the majority of the redacted information relates solely to the referrer. Having examined the record in question, I am satisfied that the information refused by Tusla is personal information relating to individuals other than the applicant or joint personal information within the meaning of section 37(7) as outlined above. I find that section 37(1) of the Act applies to the information Tusla redacted from 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)
Section 37(2)(a) provides for the grant of access to personal information relating to the requester. I am satisfied that no further information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). While the record contains a very small amount of joint personal information, I do not consider that personal information relating to the applicant can be separated from that of other individuals. The record also contains personal information relating entirely to identifiable individuals other than the applicant. I am also satisfied that the remaining circumstances set out in section 37(2) do not arise. That is to say, the third parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
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. I am satisfied that section 37(5)(b) of the FOI Act 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 FOI 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 FOI Act places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions provided for under the Act, such as under section 37(8) (which I consider below), 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 FOI 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) which provides that, in performing any functions under the FOI 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, Tusla identified a number of public interest factors both in favour of and against the release of the personal information in the records. In relation to the former, it identified the public interest in openness, transparency and accountability in the manner in which Tusla performs its functions; the public interest in members of the public knowing that the information held by public bodies about them, or those they represent is accurate; and the public interest in members of the public being able to exercise their rights under the FOI Act. In terms of the latter, Tusla identified the strong public interest in protecting the right to privacy. Tusla also noted that it operates under the Child and Agency Act 2013 and the Child Care Act 1991, and per its statutory functions, initiated an investigation under these Acts as the information provided to it contained child protection concerns. Tusla said it is very important that it continues to receive confidential information with regard to child protection concerns and that it maintains the trust of the public in assuring that all information received is held anonymously as per their expressed wishes and that their confidentiality is protected. It said that this ensures that all such concerns continue to be reported to Tusla going forward.
Tusla said that it concluded that the public interest in preserving the privacy rights of the relevant third party/parties outweighed the public interest in the release of this information. It said that it considered the release of the majority of information in the Report to satisfy the public interest in openness, transparency and accountability.
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 FOI 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).
Having considered the matter, it is not apparent to me how the release of personal information relating to an individual/individuals other than the applicant, effectively, or at least potentially, to the world at large, would enhance transparency around the manner in which Tusla carries out its functions. In my view, Tusla has attempted to strike a balance in this case between serving the public interest in transparency and accountability, and the public interest in protecting the privacy rights of the third parties. In the circumstances of this case, I am not aware of any public interest that would, on balance, outweigh the privacy rights of the individual(s) concerned. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8)
Finally, section 37(8) of the Act provides a right of access to personal information relating to an individual who has not attained full age by his/her parent or guardian where access to those records would, having regard to all the circumstances, be in the individual's best interests. However, neither section 37(8) nor the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016) that underpin this provision in the Act provide a basis for releasing records, or parts of records, which contain personal information relating to a third party. While a very small amount of the information refused by Tusla contains information about the applicant's son, this information is inextricably linked with the personal information of a third party/third parties. That is to say that the information does not relate solely to the applicant's son. Accordingly, I do not need to consider whether this information falls to be released under the Regulations.
Accordingly, I find that Tusla was justified in refusing access, under section 37(1) of the FOI Act, to the information it withheld from the Report.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla's decision on the basis that section 37(1) of the Act applies to the information it redacted from the record at issue. I also affirm Tusla's decision to refuse access to further records under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist.
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