Whether TUSLA was justified in refusing access to records related to a home visit by a social worker, under sections 35 and 37 of the FOI Act

29 July 2019

Background

On 4 September 2018, the applicant made an FOI request to TUSLA for information relating to a home visit by a social worker. TUSLA did not issue a decision within the statutory time frame. On 2 February 2019, the applicant applied for an internal review of the deemed refusal. On 14 March 2019, TUSLA issued an “effective position” letter. It granted access to certain information and refused access to the remaining records under sections 35(1)(a) and 37 of the FOI Act. On 8 May 2019, the applicant applied to this Office for a review of TUSLA's decision.

In conducting my review, I have had regard to the correspondence between the applicant and TUSLA as outlined above and to the correspondence between this Office and both parties, as well as to the contents of the withheld records that were provided to this Office by TUSLA for the purposes of this review.

Scope of the Review

This review is concerned with whether TUSLA was justified in refusing access to the withheld records, under sections 35(1)(a) and 37 of the FOI Act.

Preliminary Matter

Before considering the exemption claimed, I wish to note two points. First, with certain limited exceptions (e.g. section 37(2), 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.

Secondly, 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. This Office takes the view that the provisions of section 18 do not 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, 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.

Analysis and Findings

Section 35 – Information obtained in confidence

TUSLA withheld Records 5 and 14 of File 1 under section 35(1)(a) of the FOI Act. Section 35(1)(a) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information given to an FOI body, in     confidence and on the understanding that it would be treated as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body. It is subject to a public interest balancing test under section 35(3).

All four requirements as outlined in section 35(1)(a) cited above must be satisfied in order for a record to be considered exempt from release under section 35(1)(a).

Records 5 and 14 of File 1 are letters from a third party to TUSLA which raise concerns about child welfare. They are stated to be made “in confidence”. TUSLA says that this information was given in confidence to it on the understanding that it would be treated as confidential. It says that releasing this information may prejudice the giving of similar information in future and this type of information is important to TUSLA in order that it carries out its functions in relation to child protection matters.

Having regard to the content of these records and the context in which they were given, I find that section 35(1)(a) applies to them. I am satisfied that this information was given to TUSLA in confidence and on the understanding that it would be treated by TUSLA as confidential. I am also satisfied that disclosing these letters to the world at large would be likely to prejudice the giving to TUSLA of further similar information from the third party or other people. Finally, I am satisfied that it is important to TUSLA that information regarding child welfare continues to be given to it, in view of its functions. Whether specific complaints have any substance is not a relevant consideration in this instance.

I am therefore required to apply the public interest balancing test under section 35(3). On the one hand, section 35(1)(a) itself reflects the public interest in the proper preservation of confidences. I consider that there is a public interest in safeguarding the flow of information to TUSLA. On the other hand, there is a public interest in transparency around the way in which TUSLA carries out its functions. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making.

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. 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 her application for review, the applicant provided this Office with details of her family life and says that she just needs to know who made the report. While I have sympathy for the applicant, I consider that this is more properly viewed as a private rather than a public interest. Moreover, I do not consider that releasing the content of these particular records would serve the public interest in transparency around TUSLA.

I consider that on balance, the public interest would not be better served by granting access to these records and I find that TUSLA was justified in refusing access to them under section 35(1)(a).

I will turn to consider the remaining records, which TUSLA refused under section 37 of the FOI Act.

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: “(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 remaining records contain the mobile telephone numbers of individuals other than the applicants; information about identifiable individuals other than the applicant that would, in the ordinary course of events, be known only to the individual or his/her family or friends; and views or opinions about individuals other than the applicant. Accordingly, their release would involve disclosing personal information relating to individuals other than the applicant. In theory, one could extract certain words from the remaining records that relate solely to the applicant. However, those words appear in the context of other information that relates primarily to the third parties. Having regard to section 18 of the FOI Act, I conclude that to provide the remaining records with isolated words would be to provide misleading records.

I therefore find that the remaining records are exempt from release under section 37(1) of the FOI Act. This finding is subject to the provisions of sections 37(2) and 37(5), which I examine below.

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. I am satisfied that none of the circumstances in section 37(2) applies to the records which I have found to be exempt under sections 37(1) above. That is to say: (a) they do 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 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.

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.

I do not consider that disclosing the remaining records, which I have described above, would serve the public interest in transparency around TUSLA. I believe that an invasion of privacy would occur if they were disclosed to the world at large, which is the effective result of releasing records under FOI. I do not consider that the public interest that the request should be granted outweighs the right to privacy of the third parties. 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.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm TUSLA’s decision to refuse access to the records, under sections 35(1)(a) and 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.

 

 

                                       

Elizabeth Dolan

Senior Investigator