Whether TUSLA was justified in its decision to refuse the applicant's request for records held on its social work and complaints file relating to the applicant and her family under section 37(1) of the FOI Act

21/09/2018

Background

On 26 April 2017 the applicant submitted a vague request, addressed to the Social Work Department in a specific location, for access to all records relating to -˜engagement commencing June 2008-™. No further details were supplied by the applicant in relation to her request. A period of almost nine months elapsed before TUSLA issued a decision on the request on 24 January 2018. It identified 302 pages of records held on a social work file concerning the applicant's son as coming within the scope of the applicant's request. It refused access to the vast majority of the records held on the file under section 37(1) on the ground that they contain personal information relating to third parties and/or joint personal information relating to the applicant and other third parties.

The applicant sought an internal review of the decision to withhold the records in question on 5 February 2018. She also referred to a broad range of records that she believed to have been omitted from the scope of the request. On 21 February 2018, TUSLA informed the applicant that her request was initially interpreted as a request for the social work file. It stated that it was aware of other files held relating to some of the issues she identified in her application for internal review and that those files would be considered for release as part of that review. It further advised the applicant that if she wished to access records held by the HSE or by TUSLA at a corporate level she could make new requests for those records and it provided details of the offices to which those requests could be made.

TUSLA issued its internal review decision on 4 April 2018. It affirmed the original decision to refuse access to the majority of the records held on the social work file and it refused access to all records held on a complaints file under section 37(1). On 10 April 2018 the applicant sought a review by this Office of TUSLA's decision to refuse access to the records in question.

I have decided to bring this review to a close by way of a formal, binding decision. In conducting the review, I have had regard to TUSLA's correspondence with the applicant as outlined above and to communications between this Office and both TUSLA and the applicant on the matter. I have also had regard to the contents of the records at issue.  

Scope of Review

This review is concerned solely with whether TUSLA was justified in refusing access to the records held on its social work and complaints file under section 37(1) of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising, I would like to draw the attention of the parties to a number of points. 

First I would like to record my disappointment at the manner in which TUSLA processed the applicant's request. As can be seen from the chronology of events above, TUSLA failed to adhere to the statutory time-frames and took almost nine months to issue a decision to the applicant. As this Office has previously stated, 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, especially where a high volume of FOI requests is received.

Secondly, section 18 of the FOI Act provides that if it is practicable to do so, records must be granted in part by excluding the exempt information, unless the copy of the record provided would be misleading. This Office takes the view that section 18 does not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, it is noteworthy that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records released may be put. 

Analysis and Findings

Section 37 - Personal Information

   
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).

The FOI Act defines the term "personal information" 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 the body as confidential. The definition also contains a list of 14 specific types of information that is personal information for the purposes of the Act, including information relating to the educational, medical, psychiatric or psychological history of an individual. 

The records at issue are contained in two files held by TUSLA. The records held on the social work file relate to the Agency-™s engagement with members of the applicant-™s family over a number of years. They include correspondence with the applicant as well as detailed notes of engagement by social workers with the applicant and members of her family.  In many of the records there is substantial detail relating to internal family dynamics. The complaints file contains considerable correspondence from the applicant to TUSLA over a number of years in relation to the services provided to her youngest son. Given the volume of correspondence, this file is broken down into 10 sub-folders. While much of this correspondence is directed to TUSLA, it is also noted that the applicant has included considerable correspondence with other public bodies in relation to her youngest son. In addition the records also relate to a formal complaint made by the applicant to TUSLA in 2016 regarding the handling by the Agency of matters in relation to her youngest son.  

While the records held on the social work file contain references to the applicant herself, they also contain substantial information relating to the applicant's husband and children. The context of the records, relating to engagement by social workers with the applicant's family on a number of child protection issues, means that much of the information contained in these records is inherently private and sensitive. I am satisfied that the records on the file contain either personal information relating to individuals other than the applicant or joint personal information relating to the applicant and other individuals. I find, therefore, that section 37(1) applies to these records. 

I am also satisfied that the records held on the complaints file contain very detailed and inherently sensitive personal information relating to the applicant's son. In so far as they contain personal information relating to the applicant, I am satisfied that such information is inextricably linked to personal information relating to the applicant's son and/or other individuals. I find that section 37(1) applies to these records.

However, that is not the end of the matter as I must also consider whether the other provisions of that section 37 serve to disapply subsection (1).  

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. Subsection (1) does not apply where (b) the third parties have consented to the release of the information; (c) the information is of a kind that is available to the general public; (d) the information belongs to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual. 

On the matter of third party consent (subsection (2)(b)), I note that this Office was in correspondence with the applicant in relation to a separate review of a decision taken by the National Council for Special Education (NCSE) on a request for records made by her son. As the applicant sought a review of the decision of the NCSE on her son's behalf, this Office requested a letter of authority from her son authorising the applicant to act on his behalf. The letter of authority sought was provided and a second letter of authority was provided in relation to this review "in case this is also needed".

The letter submitted relating to this review is a letter from the applicant's son giving consent to the applicant to act as his representative in relation to the review. While such an authorisation was needed in the case involving the NCSE as it was the applicant's son who had made the request, no such authorisation was needed, or sought, in this case. Having carefully considered the letter, I am not satisfied that it can reasonably be regarded as a written consent to the release of the son's personal information to the applicant. In any event, as will be clear from my description of the records above, the disclosure of the records would also involve the disclosure of personal information relating to other family members, apart from the applicant and/or her son. It is also noteworthy that the applicant did not provide letters of consent to TUSLA. It the circumstances, I am satisfied that subsection (2)(b) does not serve to disapply subsection (1) in this case. I am also satisfied that subsections (2)(c) to (2)(e) do not apply in this case.

Section 37(5)

I must now examine whether the provisions of section 37(5) serve to disapply section 37(1) to the relevant records. 

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual 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.

In determining where the public interest lies, the FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they carry out their functions. Indeed, the Act specifically requires public bodies, in performing any functions under the Act, to have regard to, among other things, the need to achieve greater openness in their activities, to promote adherence to the principle of transparency in government and public affairs, and the need to strengthen their accountability and to improve the quality of their decision making.

On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 and in 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. 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. 

It is also important to note that, as set out above, with certain limited exceptions, 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" . The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. In the circumstances, I consider it appropriate to regard any release of the records concerned as being effectively, or at least potentially, to the world at large. In this context is important to re-state that the records contain information of an inherently private and sensitive nature relating to the applicant's family.

The applicant is clearly dissatisfied with TUSLA's handling of certain matters relating to her family and in particular her youngest son, and has argued that this weighs in favour of granting access to the records. However, I have no remit to consider, or make findings on, the adequacy of the TUSLA's actions in relation to the applicant and her family, nor its procedures for dealing with the matters concerned. It would not be appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis of assertions to the effect that an FOI body's processes may have been inadequate. As previously outlined to the applicant, this Office has no role in the examination of the services which have been provided to her son.  

In the circumstances, I find that the public interest in granting access to the relevant records does not, on balance, outweigh the public interest in protecting the privacy rights of other members of the applicant's family and that section 37(5)(a) does not apply.  

In addition I see no basis for finding that the grant of the request would benefit the individual to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case. I cannot accept that the release of inherently personal information, even to a family member, can be said to be of benefit to the other members of the applicant's family.  

I find therefore that TUSLA was justified under section 37 of the FOI Act, in refusing access to the records. 

For the sake of completeness, I should add that the Minister for Public Expenditure and Reform introduced regulations that provide for a right of access by parents or guardians to records containing personal information relating to their children. The vast majority of the records at issue concern the applicant's youngest son. However, as he is over the age of 18, the Regulations do not apply in this case.

As a final comment, I would like to clarify that this decision does not prohibit the applicant or, indeed, her son from making a fresh request for access to the records at issue. However, if the applicant chooses to do so, I would strongly recommend that the scope of any such request be clearly defined to avoid any further confusion as to the nature and extent of the records sought.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of TUSLA to refuse access to the records held on its social work and complaints file relating to the applicant and her family under section 37(1) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator