Decision
Ms X and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-150248-G5P0H7
Published on
British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Irish Information Commissioner's Decisions
You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Ms X and Tusla [2024] IEIC 150248 (16 October 2024)
URL: http://www.bailii.org/ie/cases/IEIC/2024/150248.html
Cite as: [2024] IEIC 150248
[New search] [Help]
Whether Tusla was justified, under section 15(1)(a) of the FOI Act, in refusing access to a report showing the number of children in the Galway City area who are without a secondary school place or are awaiting one, on the grounds that it does not hold a record containing the information sought and on the basis that it is not required to create the record pursuant to section 17(4) of the Act
16 October 2024
In a request dated 26 October 2023, the applicant sought access to a report showing the number of children in the Galway City area who are currently without a secondary school place or are awaiting one. She also requested a breakdown of the number by gender.
In a decision dated 22 November 2023, Tusla refused the request under section 15(1)(a) of the Act on the basis that it does not hold the record sought by the applicant. On 14 December 2023, the applicant requested an internal review of Tusla's decision. On 5 January 2024, Tusla affirmed its original decision and directed the applicant to information available online about its Education Welfare Service (EWS). Tusla said that its Education Welfare Service, which is part of the Tusla Education Support Service (TESS), supports parents to secure a school place for their child, but does not maintain a specific report on children without a secondary school place. On 3 July 2024, the applicant applied to this Office for a review of Tusla's decision.
During the course of this review, this Office's Investigating Officer provided the applicant with details of submissions made by Tulsa about its record management practices relating to the information sought and its reason for concluding that the information cannot be extracted electronically. The applicant was invited to make submissions in the matter, which she duly did.
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, including the submissions made by both parties. 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, under section 15(1)(a) of the Act, to the number of children in the Galway City area who were without a secondary school place or were awaiting one at the time 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. 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.
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.
In its submissions to this Office, Tusla said that Educational Welfare Services which are part of the Tusla Education Support Services (TESS) work with children and families who have difficulties in relation to school attendance, participation and retention. It said that Educational Welfare Officers work to ensure that every child either attends school regularly or otherwise receives a minimum education; to ensure and secure every child's entitlement to education. Tusla said that formal tracking of the number of children without school places does not fall under the remit of TESS. It said that Educational Welfare Officers prioritise referrals in relation to those without school places and work with families, schools and other stakeholders to secure same.
Tusla said that while Educational Welfare Officers case files are held on Tusla Case Management System (TCM) electronically, they are typically structured to support individual case management rather than for bulk data extraction. These records are not organised in a way that allows for easy aggregation of this specific data point, i.e. the number of children without a school place. Tusla said that extracting such information would involve a manual review of each file to locate relevant details, a process that would be time-consuming and resource intensive.
Tusla said that while records are stored electronically on the TCM, a review of each case would still need to be done manually. Tusla said that this is due to information being stored in multiple systems or in unstructured formats, such as narrative case notes, scanned documents, or free-text fields within the TCM. In such cases, automated searches or queries might not be able to identify the specific data (e.g. children awaiting school placement) because it is not categorised or tagged in a way that allows easy extraction. Tusla said that if a child in their records is referred under the category of "no school place", this could be for multiple reasons, including low attendance and expulsion. When the status of the child's school placement changes, (i.e. 'placement confirmed', 'home tuition' or 'other') this is noted within the case file and is entered as a case note by the Education Welfare Office (EWO) or in emails and documents attached to the case. Tusla said the initial referral to TESS would include the reason for referral, such as "no school place". It said, as the EWO engages with the child and their family, updates on their placement status would be noted in case notes. This could be through informal notes (e.g., "waiting for school X to confirm") or formal documentation (e.g., email correspondence with the school or parents). Documents such as letters or emails between TESS, parents and schools are attached to the child's case file. As these updates are recorded in free-text fields such as case notes or within attachments, Tusla claimed that it is not possible to automatically query TCM for all cases where a child is awaiting a school place or on a school waiting list.
Tusla said that availability of school places can fluctuate throughout the year due to factors like student mobility, last-minute enrolments, or changes in school capacity. According to Tusla's submission, TESS does not have the infrastructure or capacity to continuously monitor and update such records as this would divert resources from other essential functions. Tusla stated that each school holds responsibility for its own enrolments according to its individual policy and manage its own waiting lists. Tusla said that referrals to TESS may not have included all children in the Galway city area who were awaiting school placement at the time of the request, as not all of them may have been referred to TESS.
Tusla said that its Education Welfare Service (EWS) typically handles cases of children without school placements on an individual basis. As a result, a central or aggregated record of all children without school placements is not created or retained. Tusla said that this is in line with its operational approach, which focuses on addressing specific cases based on individual need rather than maintaining a consolidated record. Each case is managed independently, with relevant documentation held within individual case files rather than in a centralised report or list of children without school places.
Tusla stated that information received by TESS in relation to children awaiting a secondary school place in October 2023 in the Galway city area exists across multiple individual records. It said, since each case is handled individually, case information is dispersed across individual case files. Tusla argued this makes it prohibitively difficult to extract and collate into one aggregated record.
Tusla said that the information about children awaiting school places in the Galway city area is not stored in a single, easily accessible database. It said, the relevant information is spread across various case files which is some cases are managed by different services e.g. The Regional Education and Language Teams (REALT) whose focus is on assisting families in securing school places for children from Ukraine and is hosted by 16 regional Education Training Board's (ETB's) would also need to be searched to ensure accuracy. It said a similar exercise would need to be carried out in relation to international protection children.
In its submissions to this Office Tusla said, as the applicant is requesting specific data (the number of children awaiting a school place in October 2023), the process would involve:
● Searching multiple individual personal service user case file on Tusla Case Management System (TCM) to identify records related to school placements in Galway city.
● Sorting through individual case files or records to check if a child is awaiting placement.
● Manually compiling data on the specific number of children affected in the specific timeframe (October 2023). While "no school place" is a referral category, searching under this specific category would not reveal the number awaiting a school place as these students could be availing of home tuition and or other services and may not be on a school waiting list. Therefore, Tusla would need to open and review each file associated with the Galway area individually.
● Since various agencies and or departments may hold relevant parts of the information (such as REALT, IPAS, the Department of Education for enrolment, and schools for local data), cross-departmental communication and data coordination would also be necessary.
● There is no single data point or record where the status of "awaiting school placement" is clearly and systematically recorded. While a referral may be received under the category "no school place" this can progress to a school placement and similarly if a school attendance referral is received this could progress to no school place.
● To provide an accurate response TESS would have to review individual case files and any other communication between schools and other agencies to determine which children are confirmed as waiting a school placement during the timeframe.
● Verifying data would also be challenging as records would need to be cross referenced with schools and other agencies.
The applicant responded to Tusla's submissions with several points. While I have not documented each of the applicant's arguments here, I can confirm that I have had regard to them for the purposes of this review. The applicant raised concerns related to the record-keeping practices of Tusla and how they seem to be ill-fitted to its functions. She also raised concerns about the necessity of maintaining data on children awaiting school places and about oversight and accountability in this regard. It is important to note that the role of this Office is not to determine what records should exist, to adjudicate on how public bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by public bodies, or by any other parties. Our role in this case is confined to reviewing Tusla's decision on access to the information sought in the applicant's FOI request.
The applicant contends that Tusla should be well-positioned to compile a record of the number of children without a school place in the Galway city area. She stated that Tusla should have an overall view of the number of children waiting on a school place so as to serve its function to assist children in receiving their right to an education. The applicant contends that because "no school place" exists as a referral category to TESS, this means that Tusla could collate the numbers under this heading and provide the figures to her.
The essential purpose of section 17(4) of the current 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 within a number of electronically held records 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 significant individual-level data and is well positioned to compile an aggregate report with the information she is seeking, I am satisfied that the requirement to take reasonable steps does not require Tusla to manually identify and manipulate 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 determine how many were actually without or waiting on a school place. Tusla stated there is no single data point or record where the status of "awaiting school placement" is clearly and systematically recorded. It said that it would have to review individual case files and any other communication between schools and other agencies to determine which children are confirmed as awaiting a school placement during the timeframe. 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 does not hold a record containing the information sought the applicant and that it was not required to create a record containing the information pursuant to section 17(4) of the Act.
In conclusion, therefore, I am satisfied that Tusla was justified in refusing the record sought under section 15(1)(a) of the Act on the grounds that the record sought does not exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla's decision. I find that it was justified in refusing the applicant's request under section 15(1)(a) of the Act on the ground that it does not hold a record containing the information sought and that it was not required, pursuant to section 17(4), to create a record containing 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Richard Crowley
Investigator