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Whether TUSLA was justified in its decision to refuse access to certain records, in whole or in part, contained on a social work file relating to the applicants' son on the basis that release of the records would reveal the identity of a person who contacted TUSLA about their son

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 30 September 2014, the applicants submitted a request to TUSLA for access to the file on their son. TUSLA decided to part grant the request. Of the eight records held on file, it granted access to four records in full, it granted partial access to three records and it refused access in full to the remaining record. By letter dated 1 November 2014, the applicants sought an internal review of the decision. TUSLA's internal reviewer issued his decision on 18 November 2014. While he varied the ground on which information was being withheld, he essentially upheld the decision to refuse access to certain records in whole or in part. On 12 December 2014, the applicants sought a review by this Office of TUSLA's decision.

This Office accepted the application for review on 16 January 2015 and invited the applicants to make a submission on the matter within two weeks. While one of the applicants wrote to this Office on 29 January 2015 to explain she intended to forward a letter from An Garda Síochána in her support, no further information was submitted. Accordingly, I have decided to conclude the review by issuing a formal binding decision on the matter.

In conducting my review, I have had regard to TUSLA's decision on the matter and its communications with this Office, and to the applicants' communications with this Office and TUSLA. I have also had regard to the provisions of the FOI Act and to the records at issue, copies of which were provided to this Office for the purpose of the review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the question of whether TUSLA was justified in refusing access to certain parts of three records and the entirety of a fourth record from the file held relating to the applicants' son.

Preliminary Matters

The records at issue in this case relate to concerns made to TUSLA about the applicants in connection with the care of their children. It is important to note that this Office has no role in examining the manner in which TUSLA dealt with those concerns. As outlined above, our role is confined to considering whether the decision taken by TUSLA in respect of the FOI request was justified.

Secondly, section 8(4) of the FOI Act specifically prohibits a decision maker, subject to the provisions of the Act, from having regard to any reason the applicants may have for making the request for access, except in so far as those reasons may overlap with what may be regarded as a true public interest factor in favour of release where the Act requires a consideration of a public interest balancing test.

Finally, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is limited.

Analysis and Findings

The eight records coming within the scope of the request comprise 22 pages in total. Certain information had been redacted from pages 10, 11, 14, 15, 16, and 20, while one record, comprising pages 2 to 9, has been withheld in full on the ground that section 23(1)(b) applies.

Section 23(1)(b) of the FOI Act provides that access to a record may be refused where the public body considers that disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence. This exemption provision is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the civil law, by providing information which might assist such bodies or agencies to perform their functions more effectively. For section 23(1)(b) to apply, three specific requirements must be met. The first is that release of the withheld information could reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given to the public body in confidence, while the third is that the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

First requirement
Having examined the contents of the records, I am satisfied that the release of the redacted information, and the release of any or all of the record withheld in its entirety, could reasonably be expected to reveal or lead to the revelation of the identity of a person who has given information to TUSLA. As such, I find that the first requirement under section 23(1)(b) is clearly met.

Second Requirement
The second requirement of section 23(1)(b) is that the person whose identity may be revealed through the release of the information at issue must have given information to a public body in confidence. On this point, TUSLA stated that the information provided in this case was provided by a confidential informant who did so on the basis of remaining anonymous. TUSLA stated that the receipt of confidential information is a significant source of concerns from the public regarding child welfare and protection issues and that it is vitally important that it continues to receive information through confidential sources that enables or assists it to carry out its statutory duties under child protection legislation.

It is clear to me, in considering the core statutory functions involved, that it is necessary for TUSLA staff members, in the course of their duties, to be in a position to receive necessary information in confidence from members of the public. I recognise that much of the information TUSLA receives is received in confidence from people who do not wish to be identified. It is arguable that if people providing information to TUSLA in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. In order for TUSLA to take responsive measures to deal with alleged child protection issues it must facilitate referrals to be made in a variety of ways, from a wide variety of sources. I accept that, without an assurance or understanding that information provided was being provided in confidence, persons may be reluctant to make referrals about child protection issues.

The applicants argued that the information provided in this case was untruthful and was not given in good faith. Even if this was true, and I make no finding on the matter, I accept that TUSLA accepts information relating to child welfare concerns on a confidential basis in good faith. Indeed, when one considers the person who, in good faith, supplies information that is subsequently found on investigation to be inaccurate or mistaken, the difficulty for TUSLA in handling such reports in any other manner becomes apparent. This Office accepts that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public and that TUSLA relies upon such information to carry out its functions. In the present case I give significant weight to safeguarding the inherent importance in protecting the free flow of information to TUSLA and I accept TUSLA's position that the information was given in confidence in this case, notwithstanding the fact that it was decided that no further action would be taken. Accordingly, I find that the second requirement of section 23(1)(b) has been met.

Third Requirement
The third requirement of section 23(1)(b) is that the information received by the public body relates to the enforcement or administration of the civil law. TUSLA has informed this Office that the information received by it relates to its duties under the provisions of the Child Care Act 1991 and the Child and Family Agency Act 2013. Therefore, I am satisfied that the third requirement for the exemption set out at section 23(1)(b) of the FOI Act is met.

Having found that each of the three requirements are met, I accordingly find that section 23(1)(b) of the FOI Act applies to the information refused by TUSLA in this case.

The Public Interest
Section 23(1)(b) of the FOI Act is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would, on balance, be better served by the release of the information at issue than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain circumstances arise. Those circumstances are where the records disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or the merits of any programme for prevention, detection or breaches of the law. I am satisfied that no such circumstances arise in this case, and that section 23(3) does not apply.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of TUSLA in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator