Decision
Ms X and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-149137-H2X8W6
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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Ms X and Tusla [2024] IEIC 149137 (17 December 2024)
URL: http://www.bailii.org/ie/cases/IEIC/2024/149137.html
Cite as: [2024] IEIC 149137
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Whether Tusla was justified in refusing access, under section 15(1)(a) of the FOI Act, to certain statistical data relating to the Child Protection Notification System (CPNS) appeals on the ground that it does not hold a record containing the information sought and that it is not required, pursuant to section 17(4) of the Act, to create a record containing the information, and under section 37 of the Act on the basis that release of certain data would disclose personal information
17 December 2024
The Child Protection Notification System (CPNS) contains a record of every child about whom there are unresolved child protection issues, resulting in the child being the subject of a Child Protection Plan. The decision to place a child on the CPNS is made at a Child Protection Conference.
In a request dated 22 January 2024, the applicant sought access to records in relation to appeals to Tusla's CPNS for 2021, 2022 and 2023. The request was broken down into five parts:
1) number of appeals of a decision to list a child on the CPNS,
2) number of appeals granted,
3) number of appeals not granted,
4) number of appeals won i.e. a child's name removed from the CPNS
5) number of appeals lost i.e. a child's name remaining on the CPNS.
The applicant asked for the data sought to be broken down for each area in the country. She said that should the numbers be too small to provide a county by county breakdown, she would accept overall figures for the country, broken down by year.
The applicant noted in her request that she had made a previous FOI request for the same information on 10 October 2023. She said she had been informed by Tusla that the information she was seeking was not gathered nationally unless an appeal was upheld. The applicant found this to be an unsatisfactory reason not to release records to her and so made another FOI request. Tusla's decision on this subsequent request is the subject of this review.
On 6 February 2024, Tusla refused parts 1, 3, and 5 of the applicant's request under section 15(1)(a) of the FOI Act on the basis that the information sought is not collated. Tusla stated that fewer than five appeals were upheld and granted in regard to parts 2 and 4 of the request, but did not provide the exact numbers or a breakdown of those appeals for each of the years sought.
On 22 February 2024, the applicant requested an internal review of Tusla's decision. She said figures for the number of CPNS appeals whether or not collated should be available and be released in the public interest and in the interests of openness and transparency. On 11 March 2024, Tusla affirmed its original decision. It said the FOI Act is concerned with access to records that are actually held. It said the Act does not provide for a right of access to a record which ought to exist. It also said the Act does not require FOI bodies to create a record if none exists, apart from a specific requirement to extract records or existing information held on electronic devices. Tusla said it would need to create records in order to grant the applicant's request. On 20 May 2024, the applicant applied to this Office for a review of Tusla's decision.
In its submissions to this Office, Tusla said that exact numbers were not provided to the applicant in relation to the data sought in parts 2 and 4 of her request in order to maintain the confidentiality of the individuals concerned. However, during the course of this review, Tusla provided the applicant with a breakdown of the numbers for 2021, 2022 and 2023. It said there were no appeals in relation to parts 2 and 4 in either 2021 or 2022 and that the number of appeals in 2023 was less than five for both parts. Tusla informed the applicant that it is unable to provide a further breakdown of the information concerned due to the fact it is represents a small and vulnerable population and is of a highly sensitive and personal nature. Tusla contended this information is exempt under section 37(1) of the FOI. Details of Tusla's submissions were provided to the applicant and she duly made submissions in relation to Tusla's decision to refuse her request under sections 15(1)(a) and 37(1) of the Act.
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 outlined above and to the submissions made by the applicant and Tusla during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether Tusla was justified in refusing the data sought in parts 1,3 and 5 of the applicant's request under section 15(1)(a) of the Act on the basis that it does not hold a record containing this information and that it cannot reasonably be extracted electronically pursuant to section 17(4) of the Act. This review also considers whether Tusla was justified under section 37(1) of the Act in refusing to provide the number of appeals sought in parts 2 and 4 of the request on the basis that to do so would disclose personal information of the individuals concerned.
It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on Tusla to satisfy this Office that its decision to refuse access to the records sought was justified.
In her submissions to this Officer, the applicant raised concerns about Tusla's record-keeping practices and its apparent inability to extract the information she requested. It is important to note that the role of this Office is not to determine what records ought to exist or to adjudicate on the record management practices of FOI bodies or how those bodies perform their functions generally.
Parts 1, 3 and 5 of the applicant's request
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 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 while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.
It is also important to note that, with one exception, the Act does not require FOI bodies to create records to provide information sought. The exception is set out in section 17(4) of the Act. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. However, FOI bodies are not required to manually extract information to create a new record in order to provide the information requested, regardless of the applicant's views on whether it may be practical or feasible to do so.
In its submissions to this Office, Tusla noted that it publishes certain data about its Child Protection and Welfare services on its website at Tusla Performance and Activity Reporting SiteTusla - Child and Family Agency . In relation to parts 1, 3, and 5 of the applicant's request, Tusla said that this information may be available from individual case files but does not exist in one, collated record. It said that to provide a response to the issues raised within the request would require manual examination and extraction of relevant information from individual case files. Tusla stated that it only holds files on upheld appeals. However, it said that there is a plan in development for all appeals to be recorded on Tusla's Case Management system.
Tusla said that while the current version of the CPNS has limited capacity in relation to statistical outputs, the National CPNS Support Unit are now in the process of updating the ICT capacity in regard to the CPNS and, in the near future, this will provide for the gathering of appeal data, including the capturing of information relating to whether an appeal is upheld. Tusla stated that work on this initiative should be completed by the end of the year and that this will allow for the capturing of data from the implementation date. Tusla informed this Office that by the first quarter of 2025, it will have the ability to answer the type of questions raised in the applicant's request without the need for a manual search.
In her submissions to this Office, the applicant raised concerns about Tusla's decision that the requested records do not exist. She stated that the non-collated information should exist on electronic records and so section 17(4) of the Act should apply to her request. The applicant said that she was not seeking access to third-party personal information and that her request was simply for the numbers of appeals granted, not granted, and of the granted appeals, how many were successful and unsuccessful.
After these points were put to Tusla, it outlined its record-keeping practices in greater detail to support its position as to why section 17(4) does not apply to this request. Tusla said that while the requested information may be digitally held, it is not in specific files and the information on appeals would generally exist under case notes. It said there are no specific notes of appeals initiated. To extract the information requested, Tusla said that this would involve a manual search of the children's files who were listed as active in the years requested. In relation to parts 3 and 5 of the original request, Tusla said 'rejected' and 'upheld but unsuccessful' appeals are retained but are not classified in any particular order that can be searched. Going forward, Tusla explained that 'CPNS Child Listing Appealed', 'Appeal Upheld', and 'Appeal Not Upheld' will be included as part of its electronic records system. In her submissions to this Office, the applicant asked if this system would include information from the past years mentioned in her request (2021-2023). Tusla responded to this by stating that any amendment to Tusla's systems going forward will only capture data from the date of implementation.
The applicant also queried how a request from senior management in Tusla would be processed if it were to ask for the information she requested. The Investigating Officer put this point to Tusla, which said that this would involve a new record being manually created. It said the information would not be immediately available to hand. Tusla maintained that the information the applicant is seeking does not currently exist in a stand-alone collated record and it said that it is not obligated to create a new record on foot of an FOI request.
The applicant requested figures by region, but did say she would accept national-level data if the numbers were too small. Tusla said that all appropriate searches took place and the individuals with the most knowledge of the information systems were consulted during the initial search and during the course of this review. The applicant's request was processed at national level and the Office of the Chief Social Worker and the National CPNS Support Unit were consulted.
In her submissions to this Office, the applicant stated that there should be a way other than checking individual case files to determine how many appeals to the CPNS were made, how many were not granted, and how many of the upheld appeals were unsuccessful. She suggested that there should be electronic records of correspondence in which these numbers could be reasonably ascertained by searching for terms such as 'appeal' and 'appellant'. She also said that if the numbers for parts 2 and 4 could be released, then the remaining parts of her request could be answered in a similar way. Tusla responded by reiterating that the only way, at present, to extract the numbers the applicant is seeking at parts 1, 3 and 5 of her request is via a manual process to create a new record. Tusla stated that the records that do not exist are specific documents containing the number of appeals. The request is not seeking access to the appeals themselves, but is seeking the numbers of appeals. As noted above, Tusla said that it may be able to answer the applicant's questions for future years without the need for manual extraction when its IT system is updated early next year.
Analysis
The essential purpose of section 17(4) of the FOI Act is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on the fact that the extracted output would comprise a new record. Nevertheless, for the section to apply, the information sought must be contained in an electronic format and the body must be in a position to search for and extract the records by taking reasonable steps, those steps being steps that involve the use of a pre-existing electronic search or extraction facility that was used ordinarily by the FOI body. While the applicant contends that Tusla has access to records containing the data she is seeking and can compile this data from its records, I am satisfied that the requirement to take reasonable steps does not require Tusla to manually identify and extract relevant information in order to create a record containing the information sought.
As noted above, while certain information is retained electronically by Tusla on its case management system, Tusla said it would need to examine each case individually to calculate the numbers sought. It seems to me that while the information sought by the applicant may exist on individual case files, the information is filed in various formats which do not facilitate the use of an electronic search or extraction facility that was used ordinarily by Tusla. Accordingly, I am satisfied from the submissions in this case that Tusla was justified in refusing access to the record sought in parts 1, 3, and 5 of the applicant's request under section 15(1)(a) of the Act on the grounds that no record exists containing the data sought by the applicant and that it is not required to create a record containing the information pursuant to section 17(4) of the Act.
Parts 2 and 4 of the applicant's request
As noted above, Tusla provided the applicant with details of the number of appeals in relation to parts 2 and 4 of the applicant's request. However, it refused access to the precise number of cases for 2023 on the basis that the number is less than five and that releasing the actual figure would reveal personal information that is exempt under section 37(1) of the Act.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of third party personal information. Section 37(2) provides that section 37(1) does not apply in certain circumstances. 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.
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 an 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. Furthermore, section 2 details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
It is important to note that personal information is information about an identifiable individual. Where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified. An individual may not be named in a record, yet may still be identifiable.
Tusla stated that the Office of the Chief Social Worker and the National CPNS Support Unit were consulted to address the applicant's request. In relation to parts 2 and 4 of the request, Tusla stated that it holds no record that specifically notes the number of granted appeals nor the number of successful appeals. In its original decision, Tusla informed the applicant that fewer than five CPNS appeals were granted and fewer than five were successful. It did not, at this point, specify if these answers applied to each year individually or collectively for the period 2021-2023. In its explanation as to why the exact number of these appeals could not be provided to the applicant, Tusla stated that providing this could potentially risk the revelation of the personal information of the small number of individuals involved. Tusla provided some background information on the CPNS as context for its decision not to release the exact number as requested in parts 2 and 4. It said that children listed on the CPNS are a small, especially vulnerable cohort of the children referred to Tusla's social work departments. The Social Work service maintains records of all children who have been referred and these records include information about children listed on the CPNS.
Tusla said that direct access to the CPNS is confined to members of An Garda Síochána, general practitioners and hospital medical, social work or nursing staff and Tusla social work staff. The information stored on this system is of a very sensitive and personal nature and Tusla stated that it takes every step to avoid any breaches to this personal data. It said that it is conscious of the risks that even small amounts of data released could lead to the identification of individuals having regard to the sensitive nature of the information concerned and the limited number of individuals to whom it refers. It said the risk of identification increases where individuals can triangulate personal information obtained from different sources, or perhaps live in an area where a CPNS case is active and known. Tusla stated that it does not gather the numbers of appeals nationally unless the appeal is upheld in which case the client details are deleted from the CPNS. In the case of this data, the numbers are very low (fewer than five), and release of this information could lead to the identification of an individual child or family. Tusla, therefore, relied on the section 37(1) exemption of the FOI in this regard.
In support of its decision, Tusla provided this Office with a copy of its draft guidelines for publishing small numbers which it uses as a guide to mitigating the risk that individuals could be identified through the release of statistical data. Tusla stated that it takes a principles-based approach where each result is assessed for potential disclosure risk. In the guidelines, it is stated that most disclosure risk assessments judge statistical outputs on a set "threshold" defined as the minimum number of observations underpinning the statistics. If a cell has a frequency value less than the required threshold then the cell is deemed risky or 'unsafe' for release, unless it is proven after further scrutiny with contextual information that it does not lead to the identification of any specific data subject. This threshold is set at fewer than five for statistical outputs produced by Tusla.
This document sets out guidance for the release and publication of statistical data derived from administrative data sources by Tusla. It says, publishing statistical data derived from administrative sources carries a risk that individuals could be identified and confidential information about them released. Tusla's guidelines say, identification might be based on the published information alone or combined with some other information. The guidelines say the term 'personal data' means any information concerning or relating to a living person who is either identified or identifiable (such a person is referred to as a 'data subject'). It says, an individual could be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier (such as an IP address) or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that individual. In general, if the output contains potentially identifiable information counts <5 will not be released.
The Investigating Officer asked Tusla to explain how releasing the exact numbers in this case could risk the identification of individuals, particularly at a national level, and what risk assessments were carried out to determine this. Tusla responded by stating that, during the course of this review, it re-examined the subject data in the applicant's request and, as noted above, decided to release a breakdown of the number of granted appeals and successful appeals for each year between 2021-2023 to the applicant, i.e. parts 2 and 4 of the request. For both granted and successful appeals, two of the years had zero, and one year had fewer than five. Again, Tusla said that it would not release the exact number for this year because it considers there is a reasonable risk that individual(s) may be identifiable. Tusla said that, because the number is so low for one year, there is a credible risk that friends and family members of the individual(s) concerned could identify who the number relates to. Tusla stated that when statistical outputs are fewer than five, it does not release the exact number in order to prevent the singling out of individuals, particularly when it comes to information of a highly sensitive nature. Tusla said this is the reason why it only stated 'fewer than five' as a response to parts 2 and 4 of the applicant's request.
Tusla also stated that, in answering parts 2 and 4 of the applicant's request in its own decision and the further breakdown during this review, it considered the production of these answers in a table released to the applicant to be the creation of a record which it said is already going beyond what it is obligated to do for FOI requests.
In her submissions to this Office, the applicant stated that she requested overall numbers as a common sense approach so as to protect the confidentiality of appellants. In her original request and submissions to this Office, she said that she would accept national-level numbers if individual area office figures could not be provided. The applicant also questioned how releasing a number, particularly at national level, could credibly lead to the revelation of personal information. She said she cannot see how anyone other than possibly the families involved or Tusla personnel and professionals that would already be aware of the case could recognise an individual case. The applicant said she believes that the full information she requested needs to be released in the public interest, and in the interests of transparency.
Analysis
In reviewing Tusla's decision to refuse access to the number of appeals sought at parts 2 and 4 of the applicant's request, the first thing I must consider is whether the release of the withheld information would involve the disclosure of personal information. As noted above, personal information for the purposes of the FOI Act means information about an identifiable individual (my emphasis) that either would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or is held by an FOI body on the understanding that it would be treated by that body as confidential. Where it is not apparent, I would expect an FOI body to be in a position to show clearly how the disclosure of the information would allow an individual to be identified.
During the course of this review, Tusla informed the applicant that there were no cases relating to parts 2 and 4 of her request in either 2021 and 2022 and that there were less than five cases for 2023. I note Tusla's concerns that there is a credible risk that certain individuals could identify who the number relates to if it released the exact number of cases for 2023. I also accept Tusla's argument that friends, family members, social workers and other parties involved in the individual appeal cases would have knowledge of the children concerned. However, notwithstanding Tusla's arguments, it remains unclear to me how release of the number of cases nationally, even where the numbers involved are very small, would reveal information about the subject of those appeals.
The information at issue in this case concerns statistical data about the number of CPNS appeals granted and the number of appeals won nationwide. As noted above, Tusla publishes certain data about its Child Protection and Welfare services on its website. I note from its website, that his information includes data on the number of children active on the CPNS for each year broken down into multiple regional areas across the country. For example, the number of children active on the CPNS for the Dublin South Central area in the first quarter of 2023 is recorded as 69. The nationwide number of cases across 17 different regions/areas recorded on the website for this quarter is in excess of 800.
While I accept there may be circumstances where reporting the actual number of cases might involve the disclosure of personal information, it seems to me that this is much less likely to occur when considering statistics at national level. As the applicant said in her submissions to this Office, she cannot see how anyone other than possibly the families involved or Tusla personnel and professionals that would already be aware of the case could recognise an individual case, nor is it apparent to me. While I have considered Tusla's submissions carefully in this regard, I do not accept that release of the number of appeals at national level would disclose personal information. I therefore, find that section 37(1) of the Act does not apply. Accordingly, I direct Tusla to release the relevant statistical data it holds for 2023. Having found that section 37(1) does not apply, it is not necessary for me to consider the remaining provisions in section 37.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary Tusla's decision. I find that Tusla was justified in its decision to refuse access to parts 1,3 and 5 of the applicant's request under section 15(1)(a) of the Act. In regard to parts 2 and 4 of the applicant's request, I hereby annul Tusla's decision to refuse access to the information sought under section 37(1) of the Act and I direct it to release that information.
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Richard Crowley
Investigator