Decision
Mr A and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-149679-R3W1M6
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Cite as: [2024] IEIC 149679
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Whether Tusla was justified in refusing access, under section 37(1) of the FOI Act, to information contained in a child protection welfare report concerning the applicant's child
6 November 2024
In a request dated 1 May 2024, the applicant requested a copy of a child welfare referral made to Tusla about his child in March 2024. On 24 May 2024, Tusla part-granted the applicant's request and released a redacted copy of a Child Protection Welfare Report (the Report). It redacted certain information under section 37 of the FOI Act. On the same date, the applicant requested an internal review of Tusla's decision. He said that false allegations are constantly being made against him from his ex-partner and his children. He referred to ongoing court matters concerning access to his children and said he is entitled to know what these false allegations relate to in order to defend his case. He said he was looking for full details of the concerns raised in the "Concerns Section" of the Report. In its internal review decision dated 10 June 2024, Tusla released a small amount of additional information contained in the Report. However, it did not release any further information contained in the "Concerns Section" of the Report. On 11 June 2024, the applicant applied to this Office for a review of Tusla's decision.
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 to this Office. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether Tusla was justified in refusing access, under section 37(1) of the FOI Act, to the information redacted from the "Concern(s)" Section of the Report.
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review 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. Accordingly, the extent to which I can give reasons for my decision in this case and the extent to which I can describe the content of the information at issue are somewhat limited.
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 personal information. This does not apply where the information involved 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 (commonly known as joint personal information). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to another individual, then section 37(1) applies to the entirety of the information. It is also important to note that the fact the applicant may be aware of the identity of the other individual does not mean that the information cannot be protected under section 37(1). For the purposes of the FOI Act, personal information is defined in section 2 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.
While section 37(1) is subject to the other provisions of the section, I will first consider whether section 37(1) applies to the information at issue. While conscious of the constraints imposed on this Office by section 25(3) of the Act as referenced above, I believe that I am not in breach of that provision by stating the redacted information concerns sensitive information provided to Tusla in connection with welfare concerns relating to the applicant's child. I am satisfied that it comprises personal information relating to the applicant that is inextricably linked to personal information relating to other identifiable individuals i.e. joint personal information. I am satisfied that the release of the information would involve disclosure of personal information relating to individuals other than the applicant and that section 37(1) applies.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case.
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I find that section 37(5)(b) 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 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.
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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.
The applicant claims the allegations made against him are false and that he requires full details contained in the "concerns" section of the Report as he wants to report these false allegations. The applicant contends that his ex-partner is responsible for manufacturing false allegations about him as part of their child access dispute. I note that in his request for internal review the applicant claims his ex-partner uses professionals she knows to send in referrals to Tusla in the hope that access would be terminated. The applicant said that this allegation is currently being investigated by Tusla and the attention is now on their mother for emotional abuse. He said he is "vigorously working with Tusla, guards and the Court to clear my name". The applicant also made certain claims about the source of the referral to Tusla and said that he wants the full referral Tusla received because he is going to An Garda Siochana about opening a criminal investigation against the source of the referral.
Essentially, the applicant is seeking access to the information at issue to defend his name particularly in the context of what appears to be a long running dispute with his ex-partner concerning access to his children. It seems to me that the applicant has, in effect, expressed a private interest in seeking access to the information at issue. The applicant's interest in determining whether he may have a cause of action whether under the civil or criminal law does not establish a public interest in disclosure of the information concerned. Moreover, the question of whether the applicant should have access to further information in order to pursue his claims about false allegations is a matter for the Courts, which have been given exclusive power under the Constitution for the administration of justice.
Nevertheless, the applicant's arguments are, in my view, reflective of a wider public interest in the promotion of procedural fairness where a public body engages with a member of the public in a context which may carry adverse consequences for that individual. This Office considers that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. However, that does not mean that it is a matter for the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances. Nor does it mean that the privacy rights of third parties should be suspended in favour of the applicant's pursuit of his claim about false allegations.
I note in this case that Tusla released certain information from the relevant section of the Report which gives the applicant a broad, high-level indication of the type of "concern" at issue. Tusla said that the approach taken in its decision was to provide as much information as possible without compromising any best interest considerations or infringement of the right to privacy which is recognised to extend to children. In my view, the release of the additional information in this case would do little to enhance transparency in how Tusla has handled the child welfare concerns it received concerning the applicant's child. Moreover, the information at issue is of an inherently sensitive and private nature. I am also cognisant of the fact that the release of information under the Act must be regarded, potentially at least, as release to the world at large. Having carefully considered the matter, I am not satisfied that the public interest in granting access to the information at issue outweighs, on balance, the public interest in upholding the right to privacy of the third parties concerned. I find therefore, that section 37(5)(a) does not apply.
Section 37(8)(a) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure, NDP Delivery, and Reform (the Minister) may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations). Among other things, the 2016 Regulations provide for 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.
The Minister for Public Expenditure and Reform has published guidance in relation to access to records by parents under section 37(8) of the FOI Act (i.e. Central Policy Unit Notice 25, available on www.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidance when performing their functions under the FOI Act. The guidance provides that the factors to be considered in cases where the question of access to personal information of minors are:
● whether the minor would consent to the release of the material,
● whether release of the material would damage the minor in some way, and
● whether the records are held in the minor's own right.
The guidance also suggests that, where appropriate, there should be a consultation with the minor concerned to establish his or her views on the release of his or her personal information to a parent. In the particular circumstances of this case, I do not consider it appropriate for this Office to consult with the applicant's young children.
In its submissions, Tusla noted that custody and access issues were ongoing in the Family Law Court, between the parents. It said the parents have an acrimonious relationship which the children are exposed to, and Social Workers had previously informed both parents about the detrimental effects of their behaviour on the children. Tusla said the redacted section of the record was shared by the child to someone he trusted. It said that the child shared his fears and concerns regarding the applicant in a safe and trusted environment. It is Tusla's belief that the child should be able to voice his concerns without fear, in an environment where they feel safe and secure. Tusla said that the applicant has been made aware of the content of the allegations. It said that when considering release of any data relating to the welfare of a child/children, the needs and safety of the children is paramount and at the forefront of the basis for release of the information.
Tusla said it recognises that throughout the course of the Social Work process the applicant has worked in partnership with the Social Work Team and is aware of all information relating to his child/children but due to the nature of the information Tusla asserts that the confidentiality of the child and the imparting of the information to a trusted recipient must be upheld and it is not in the best interest of the child to release the withheld information.
Having regard to the evidence and arguments available to me in considering whether the best interests of the child would be served by releasing the information at issue, I have had regard to the sensitive nature of the record and the fact that the minor concerned made disclosures in confidence regarding the matter. I would add that while the Supreme Court held in the case of McK v. The Information Commissioner [2006] IESC 2 that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child, the contents of the records is a relevant factor. While the applicant is entitled to the presumption that he will act in the best interests of the child, it is my view based on the nature and contents of the record, and the submissions by Tusla in this regard, that the provision of further information to the applicant carries the potential to negatively impact the best interests of the child. I also accept, based on the record contents that the release of the information concerned would be potentially damaging to the minor, and potentially damaging to the relationship between the minor and his family.
Having carefully considered the matter and having regard to all the circumstances, I find that granting access to the information at issue would not be in the individual's best interests and as such, that no right of access exists under the 2016 Regulations.
In conclusion, I find that the Tusla was justified in refusing access, under section 37(1) of the FOI Act, to the redacted part of the "concerns" section of the Report at issue in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla's decision to refuse the information it redacted in the "concerns" section of the Report under section 37(1) of the FOI Act.
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