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Case Number: 160543

Whether TUSLA was justified in deciding to refuse access to parts of the applicants' fostering files on the grounds that the records are exempt from release under sections 15, 31 and 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 2 August 2016, the applicants made an FOI request to TUSLA for "all records pertaining to [them] on record within CFA/TUSLA from December 2010 to present day". TUSLA did not issue a decision within the statutory time-frame. On 5 September 2016, the applicants applied for an internal review of the deemed refusal. It was necessary for this Office to issue a letter under section 45 of the FOI Act, requiring TUSLA to state its position. TUSLA issued a decision to the applicants by letter dated 21 November 2016. It identified three files containing 1079 pages as falling within the scope of the applicants' request. It granted access to certain information and refused access to the remaining records under section 15 (administrative), 31(1) (contempt of court), 35 (confidentiality) and 37 (personal information) of the FOI Act. On 6 December 2016, the applicants applied to this Office for a review of TUSLA's decision.
In reviewing this case I have had regard to TUSLA's decision on the matter; TUSLA's communications with this Office; the applicants' communications with this Office; communications between the applicants and TUSLA on the matter; and the content of the withheld records provided to this Office by TUSLA for the purposes of this review.
Scope of the Review
Having regard to TUSLA's schedules of records, this review is concerned with whether TUSLA was justified in refusing access to certain information under sections 15, 31 and 37 of the FOI Act. I will refer to the redacted parts of the partially granted records and the withheld records collectively as "the records". I have adopted the numbering used by TUSLA in its schedules of records.
During this review, the applicants confirmed that they do not seek access to the redacted information in Records 1-24 (File 1) or to information relating to their daughter. This information therefore falls out of the scope of this review. Furthermore, during the review an issue arose in relation to statements of account which the applicants sought. Following various contacts between this Office and the parties, TUSLA says that the applicants have now been provided with the relevant statements of account. I accept this position and therefore those records fall outside the scope of this review.

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points.

First, the records which TUSLA provided to this Office contain a significant number of duplicates and many are numbered in the wrong order. Moreover, it was not always clear from the schedule which records, or parts of records, had been released to the applicants and this Office had to seek clarification on this. These factors made the review process more protracted and less straightforward than it should have been. It is incumbent on FOI bodies to put the resources in place in order to be able to deal with FOI requests and reviews appropriately. In that regard, as I have noted above, TUSLA did not issue a decision to the applicants within the statutory time-frame and it was necessary for this Office to exercise its statutory powers to require TUSLA to state its position. The applicants have expressed frustration about the length of time which this entire process has taken and I can understand their dissatisfaction on this point.

Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on TUSLA to satisfy me that its decision is justified.

Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is very limited.

Fourthly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Finally, with certain limited exceptions (e.g. sections 37(2) and 37(8), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Section 15 - Refusal on administrative grounds to grant FOI requests

Section 15(1)(i) of the FOI Act provides, insofar as is relevant, that access to information may be refused where the request relates to records already released to the same requester, where the records are available to the requester concerned. During the review, the applicants confirmed to this Office that they have Record 138 (duplicated at 147) (File 1). I therefore find that TUSLA is justified in refusing access to this record under section 15(1)(i), on the basis that it is already available to the applicants.

Section 37 - Personal information

Sections 37(1) and 37(7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include "(i) information relating to the educational, medical, psychiatric or psychological history of the individual" and "(xiv) the views or opinions of another person about the individual".

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

The records relate to: the applicants' fostering of particular children; children who are or were in the foster care of the applicants; parents of children in foster care; and other third parties. They include information relating to the educational and medical history of individuals other than the applicant, in addition to views or opinions about individuals other than the applicants. The majority of the records contains information which relates to third parties. Accordingly, the release of those records would involve the disclosure of personal information relating to individuals other than the applicants. I therefore find that, with the exception of certain records dealt with below, the records are exempt from release under sections 37(1) and 37(7) of the FOI Act.

In theory, one could extract certain words or phrases from these records which relate solely to the applicants. However, those words and phrases appear in the context of other words and phrases which relate primarily to the care and welfare of children in foster care. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. My findings under sections 37(1) and 37(7) are subject to the provisions of sections 37(2) and 37(5), which I examine below.

This finding does not apply to certain records which I list below in my consideration of section 37(2).

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. Section 37(2)(a) disapplies section 37(1) where the information concerned relates to the requester concerned.

In my view, certain records relate more to the applicants than to the children being fostered or other third parties. Specifically, they relate to the applicants' foster caring arrangements and include professional observations of, and opinions about, the applicants in connection with particular foster placements. I therefore consider that the information concerned in these records falls into the definition of personal information under section 2 of the FOI Act and relates to the applicants. Having regard to section 18 of the FOI Act, I consider that it would be practicable to grant access to these records such that section 37(2)(a) would apply to them, by redacting identifying references to individuals other than the applicants (except for staff members of FOI bodies). These records are:

File 1

39, 42, 44, 62(b), 68, 69 (not the mobile telephone number), 312 (from "(ii) Provide..." to end), 329-332, 340 and the table on 344.

File 2

252-256 (from start of letter on page 256 until the word "allowance" on page 256 and from "As foster carers" on page 253 to end), 311

File 3

114, 125, 162 (from "Issue pertaining to..." to end), 246 (first two redacted phrases)

However, I am satisfied that none of the circumstances in section 37(2) apply to the records which I have found to be exempt under sections 37(1) and (7) above (the remaining records). That is to say, (a) the information contained in the remaining records does not relate solely to the applicants; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

I am then required to consider section 37(5) as it applies to the remaining records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.

In my view, the information which the remaining records contain is inherently private. It relates principally to the histories of children in foster care and to their welfare, as well as to family members of such children. I consider this to be highly sensitive information, which is extremely personal to the third parties concerned. I cannot identify a public interest which would override the Constitutional rights to privacy of the children and other third parties to whom these records relate. I therefore find that section 37(5)(a) does not apply in the circumstances.

It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Section 37(8)

Regulations have been made by the Minister in relation to FOI requests where the requester is the parent or guardian of a child to whom the record relates. It has not been argued that the applicants are the legal guardians of the third parties and I have no reason to believe that this is the case.

Finding

Having regard to the above, I find that TUSLA is not justified in refusing access to the records listed above under section 37(2) (other than identifying references to individuals other than the applicants and the staff of FOI bodies). I find that TUSLA is justified in refusing access to the remaining records, under sections 37(1) and 37(7) of the FOI Act.

Section 31(1)(b)

My finding under section 37 above covers all the records. Accordingly, I am not required to consider the exemption claimed under section 31 of the FOI Act. Nevertheless, I note that Records 153-224 (File 1), which contains some duplicate pages, are stated on their face to have been prepared in the context of a care order application to the courts. Court childcare proceedings are held in camera and it is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority. I consider that any record that was created for such proceedings is required to be withheld under the mandatory 31(1)(b) of the FOI Act.

Section 31(1)(b) requires that records be withheld where it is known, or ought reasonably to be known, that their disclosure would constitute contempt of court. I therefore find that these records, as well as being exempt under section 37 of the FOI Act, are exempt under section 31(1)(b).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary TUSLA's decision. I annul its decision to refuse access to the records listed above under section 37(2). I direct the release of those records in accordance with the provisions of section 18 of the FOI Act, with the redaction of the names of individuals other than the applicants (except for staff members of FOI bodies) and any other identifying references, such as dates of birth or foster placements. I affirm its decision to refuse access to the remaining records, under sections 15(1)(i), 31(1)(b), 37(1) and (7) of the FOI Act.

Right of Appeal

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 applicant 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.

Elizabeth Dolan
Senior Investigator