Whether TUSLA was justified in deciding to refuse access to records relating to the applicant under section 37 of the FOI Act

5 December 2018

Background

On 23 November 2017, the applicant made a request through his solicitor to TUSLA for access to all records relating to his child.  TUSLA sought further information from the applicant in December 2017 to enable it to identify the records and establish the relationship between the applicant and the child concerned.  TUSLA considered section 37 of the Act including regulations under section 37(8) which apply where the requester is the parent or guardian of a child.  The applicant's request was refused on 27 March 2018 on the basis of section 37 of the FOI Act (personal information).  An internal review was sought on 27 April 2018 and on 11 June 2018 TUSLA varied the original decision, granting access to one record and refusing access to others held.  The applicant subsequently sought a review by this Office.  

Any reference in this decision to the applicant also includes a reference to the solicitor who acted on his behalf.  

I have decided to conclude this review by way of a formal, binding decision. In conducting the review I have had regard to TUSLA's decision on the matter; TUSLA's communications with this Office; the applicant's communications with this Office; communications between the applicant 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

During the course of this review, the applicant refined the scope of his request.  He effectively confined his request to records referring to himself.  I will deal with the records now deemed to be within scope below in my analysis.  

However, during the course of the review, it was also discovered that a number of further records relating to the applicant are held by TUSLA's adoption services.  These were not originally considered by TUSLA when it made its decision on the FOI request.  With the agreement of all parties, I will remit this aspect of the review to TUSLA for fresh consideration of those records.  

Preliminary Matters 

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 and the circumstances at issue in my analysis is very limited.

Analysis and Findings

Initially, TUSLA refused access to all records except one.  However, once the applicant refined the scope of his request, a number of records were identified by TUSLA as falling within the revised scope.  

Records identified as falling within revised scope of review

As a result of the applicant's narrowing of the scope of the request, TUSLA provided two schedules of records to this Office, Part A and Part B, which identified some records which it considered for release and part release.  Part A consisted of 45 pages and Part B consisted of 58 pages.  I have examined those records and note that TUSLA in fact scheduled for release records that, strictly speaking, now fall outside the scope of the applicant's request, in that some of the records do not contain any reference to the applicant and/or they contain some joint personal information.  When the applicant refined his request to seek records relating only to himself it seems to me that effectively he was no longer seeking all records relating to his child but those covering a particular aspect of TUSLA's handling of his case.  TUSLA had scheduled some records for release that, in fact, related solely to the applicant's child.  For the purposes of this decision I will deal only with the information in records relating to the applicant.  

In an effort to clarify the situation, I propose to make findings on certain parts of the records scheduled by TUSLA including identification of material which I consider to be outside of what is now the scope of the review and/or information that falls to be dealt with under section 37 of the FOI Act.

Arguably, all of the information in these records concerns the applicant's child given the circumstances in which these records were created. I am taking it from the apparent willingness of TUSLA to release certain information about the child where such information appears in records mentioning the applicant that it accepts that the applicant is the child's parent and has a potential right to such information under Section 37(8) Regulations 2016 (S.I. No. 218 of 2016) as amended by S.I. 558 of 2016. Thus, my consideration of third party personal information below does not include consideration of any information on the applicant's child. However, given the terms of the applicant's narrowed scope of the request, I do not consider that the records relating solely to his child properly form part of this review.

Section 37 - Personal Information

Section 37(1) provides, subject to other provisions of section 37, for the mandatory refusal of a request where the FOI body considers that access to the records sought would involve the disclosure of personal information relating to individuals other than the requester. Section 37(7) provides that 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 referred to as joint personal information.

Having regard to the definition of personal information in the FOI Act, I am satisfied that the information in the records that identifies individuals (not staff of or contractor to an FOI body)  other than the applicant and his child is either personal information relating to those third parties or joint personal information relating to the applicant that is inextricably linked to personal information relating to another individual. I therefore find that section 37(1) applies.

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case, namely (a) the information contained in the records does not relate solely to the applicant; (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 at issue 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.

Furthermore, section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the redacted information would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.
In considering where the public interest lies, I have had 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 acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, 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. 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.

I recognise that there is a public interest in transparency and accountability around public bodies' activities and decision-making. This is acknowledged in section 11(3) of the FOI Act.  However, on balance, I do not believe that the public interest that the FOI request should be granted outweighs the public interest that the right to privacy of third parties should be upheld. While the applicant submits that he has a constitutional right to certain information, I believe that this does not extend to the personal information of third parties where this appears in records alongside mentions of the applicant.

Accordingly, I find that TUSLA was justified in withholding access to those parts of the records which I will identify in the Appendix to this decision.

Records to be Released

Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed.  This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, the Commissioner takes the view that neither the definition of a record 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.  However, I am of the view that a number of records scheduled by TUSLA contain information relating to the applicant in the context of matters relating to TUSLA's involvement with his child and that these could be released subject to redactions of the third party personal information discussed above.  Accordingly, I find that the  parts of records identified in the Appendix to this decision fall to be released.  I find that the remainder are either outside of the revised scope of the review and/or exempt under section 37 of the Act.  For ease of reference I also set out details of the redactions in the Appendix.  

Adoption Services Records

During the course of the review TUSLA acknowledged that the records held by the Adoption Services were inadvertently omitted from the review.  TUSLA indicated that it was likely that some exemptions under the FOI Act would apply to some or all of such records.  In the circumstances, I will remit this part of the review to TUSLA so that a fresh decision making process can be undertaken in relation to the Adoption Services records and the applicant's right to an internal review and further review by my office, if necessary, is thereby preserved.  As I understand it, TUSLA has not yet considered their content in detail.  

I would suggest, however, that TUSLA would first contact the applicant to establish that he wishes to have an FOI decision on the Adoption Services records.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary TUSLA's decision and direct it to release the parts of records identified in the Appendix attached to this decision.  I find that any remaining parts of those records are either outside the scope of the review or exempt from release under section 37.  

I direct (if the applicant requires this) TUSLA to undertake a fresh decision making process in accordance with section 13 of the FOI Act in relation to the records held by the Adoption Services and to notify the applicant of its new decision together with the statutory review rights etc.  For the sake of clarity, I specify that, subject to sections 24 and 26 of the FOI Act, the statutory time limit for the making of the fresh decision begins within 5 working days of the expiration of the 4 week period for the bringing of an appeal by the FOI body to the High Court from this decision as provided for at section 24(4) 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