Whether TUSLA was justified in refusing access to records relating to the applicant and his children

19 August 2022

Background

The applicant-�s FOI request of 29 September 2021 sought access to all records relating to him and his two minor children (Child A and Child B). TUSLA-�s decision of 13 December 2021 granted the request in part. It released some records in full and in part and withheld the remainder under sections 31(1)(a) (legal professional privilege) and 37(1) (personal information) of the FOI Act.

The applicant sought an internal review on 6 January 2022. TUSLA-�s internal review decision of 20 January 2022 affirmed its decision on the request. On 10 February 2022, the applicant applied to this Office for a review of TUSLA-�s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, TUSLA and the applicant, the content of the withheld information, and the provisions of the FOI Act.

Scope of Review

TUSLA-�s decisions covered four files. It fully released one file concerning Child A, containing two records. 16 records are on Child A-�s other file, of which TUSLA has fully released records 1-7 and 12, partially released records 8-11 and 13-15, and fully withheld record 16.

One of Child B-�s files contains 212 records, of which TUSLA has fully released records 9, 10, 12, 13, 16, 29, 31, 32, 34-36, 38-43, 45-50, 52-56, 59, 61-63, 65, 90, 92, 107, 109-111, 113-116, 118, 119, 121, 125, 140, 154, 163-165, 178, 179 and 204. It has fully withheld records 1-7, 17-26, 66-86, 93-106, 122, 124, 126-139, 141-153, 155-161, 167-170, 180-203 and 206-212, and has released the remaining records in part.

The second of Child B-�s files contains 16 records, of which TUSLA has fully released records 1-5 and 11 and partially released records 6, 8-10, 12, 13 and 15. It has fully withheld records 7, 14 and 16.

My review is confined to whether TUSLA-�s decision on the withheld records and parts of records is justified under the provisions of the FOI Act. References to -�records-� in the remainder of this decision includes references to records that have been partially released.

The applicant says that the details provided to date are -�exceptionally limited, unhelpful, not accurate and more importantly [are not in the best interests of the applicant or his children]-�. He also says that matters do not favour a separated or widowed parent and/or a vulnerable parent or family, and that this should not be the case in 2022.

My review cannot examine or make findings on these or other matters, including TUSLA-�s (or any other party-�s) dealings with the applicant and/or his children. Neither can the review take account of the applicant-�s views on such matters. However, it is open to the applicant to make an application to TUSLA under section 9 of the FOI Act (i.e. for the amendment of records considered to be inaccurate), and in due course to make a further appeal to this Office.

Preliminary Matters

The applicant says that the withheld records are relevant and very important to his family and that his request is in his family-�s best interests. He says that he will not accept any less than has been requested. However, section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making his FOI request.

It is also relevant to set out the Commissioner-�s position on the provision of records with exempt information redacted. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

TUSLA has granted partial access to some of the records, which was presumably intended to ensure that the applicant would get as much access to information about himself and his children as possible. While the applicant may attach great importance to getting access to the remaining withheld details, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remainder of such records for the purpose of granting access to those particular sentences or paragraphs.

Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the descriptions I can give of the records and of the reasons for certain parts of my decision are somewhat limited.

Release of records under FOI is generally understood to have the same effect as publishing them to the world at large.

Finally, I have had regard to the comments of the Supreme Court-�s judgment inTheMinister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 (the eNet judgment). The Supreme Court said -�it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.-� I also note that, in the Supreme Court case ofSheedy v the Information Commissioner([2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that -�[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard-�.

However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Analysis and Findings

Section 31(1)(a) -� legal professional privilege

Section 31(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege) and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Where it is claimed that records are covered by legal professional privilege, each record should be considered in its own right.

Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice. The concept of "once privileged always privileged" applies and, unless otherwise lost or waived, advice privilege lasts indefinitely.

Litigation privilege attaches to confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation. The relevant records must have been created for the dominant purpose of contemplated or pending litigation. Litigation privilege does not automatically continue beyond the final determination of the proceedings in which it originally applied.

When inviting TUSLA-�s submissions, this Office-�s Investigator noted that section 31(1)(a) appears to have been applied to correspondence sent to, and received from, the applicant/his legal advisors. She asked why TUSLA considers these to be confidential communications for the purposes of section 31(1)(a). She also asked it to explain why litigation privilege may be claimed over records relating to what she understood was now concluded litigation. She also asked such communications may be considered to contain details of legal advice sought/received by TUSLA.

TUSLA says that section 31(1)(a) applies to correspondence concerning concluded family law proceedings, which it says are held in private andin camera.It says that any related documents prepared, sought, sent or received are considered subject to thein camerarule.

A record does not attract LPP on the basis that it relates to proceedings held in camera. Furthermore, because privilege attaches to confidential communications and belongs to the client, TUSLA cannot claim privilege over correspondence that it sent to or received from the applicant or his legal advisors. The litigation to which the records specifically relate has concluded and TUSLA has not explained how any related privilege may continue to apply. Although not referred to or argued by TUSLA, I do not consider the records to attract advice privilege. I have no reason to find that the records attract LPP and I find that section 31(1)(a) does not apply.

However, TUSLA-�s comments indicate that disclosure of the relevant records may amount to a contempt of court. Although it has not relied on section 31(1)(b) (contempt of court), this is a mandatory exemption and I will consider whether it applies in the circumstances of this case.

Section 31(1)(b) -� contempt of court

Section 31(1)(b) provides that a head shall refuse to grant an FOI request if the record concerned is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court. Section 31(1)(b) does not require consideration of the public interest.

It is a contempt of court for any person to disseminate information emanating or derived from proceedings heldin camerawithout prior judicial authority. Thein camerarule applies to proceedings where there is a statutory requirement such proceedings are held in private or otherwise than in public. It applies to certain proceedings including certain family law proceedings and certain proceedings involving minors. In many cases the requester seeking access to the records may have been a party to thein cameraproceedings. However, the identity of the requester is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).

The Investigator asked TUSLA to confirm certain matters and referred it to the possible relevance of section 31(1)(b). Although it did not rely on that provision, TUSLA says that those records concerning family law court proceedings, and records concerning the Guardianship of Infants Act 1964 and/or section 20 of the Child Care Act 1991 (the CCA), are subject to thein camerarule.

The Investigator also invited the applicant-�s comments on section 31(1)(b). Other than the general remarks as outlined above, he makes no specific arguments.

Having considered the withheld details, on their face I am satisfied that certain of them relate to court proceedings heldin camera. It is not relevant whether the applicant was a party to such proceedings or that he created some of the records concerned.

I am not aware of any judicial authority regarding the disclosure of the details concerned. However, some withheld excerpts and pages are parts of what, from their face, I am satisfied are composite records that were created in relation toin cameraproceedings. TUSLA has released other excerpts and pages from such composite records. This does not give me any basis to find that section 31(1)(b) does not apply to the remainder of these, or other, records.  

I accept that disclosure under FOI of the following would amount to a contempt of court and I find that section 31(1)(b) applies to them:

• Child A File 2 -� pages 8 and 9 -10 (in part).
• Child B File 1 - pages 21 (in part), 24 (in part), 25 (in part), 27, 28, 30, 33, 37, 44, 51, 57, 58, 60, 64, 69 (in part), 70 (in part), 73 (in part) 81 (in part), 93 (in part), 105, 129-139, 141- 143, 145 (in part), 146 (in part), 151(in part), 153, 155-161, 167- 170, 172-177, 180 (part), 181-203, and 205-212.
• Child B File 2 - pages 6 and 7 (in part).

Section 37 -� personal information

TUSLA has relied on section 37 of the FOI Act in relation to the remaining withheld information.

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. The fact that the applicant may be aware of some of the information concerned or that he or his legal advisor created some of the records is not relevant to my consideration of section 37(1).

TUSLA-�s position is that that the remaining withheld details either contain personal information about other individuals other than the applicant and his children, or contain such information that is inextricably linked to personal information about the applicant and his children (joint personal information). Having examined all of the withheld information, and mindful of the requirements of section 25(3), I am satisfied that it is all captured by one or more of the examples of what comprises personal information about identifiable individuals.

It is not possible to separate out information relating solely to the applicant and/or his children from the content of those records containing joint personal information. Even if other individuals-� names were withheld, I am satisfied that they would be identifiable from the context and content of the remaining material. Accordingly, section 37(7) is relevant. Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it 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.

I find that section 37(1) applies to the details. This is subject to consideration of sections 37(2) and (5), however.

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. TUSLA says that none of the circumstances in section 37(2) arise. While the applicant has made no arguments to the contrary, he may nonetheless feel that all of the third party information relates to him and his children, given that it is contained on his children-�s files.

While section 37(2)(a), in particular, provides for the grant of access to personal information relating to the requester. I am satisfied that no further information falls for release further to this provision. Certain of the withheld details concern identifiable individuals other than the applicant and/or his children. While other details comprise joint personal information, I have already outlined the provisions of section 37(7) and also explained why I do not consider that personal information relating to the applicant and/or his children can be separated from that of other individuals. I am satisfied that the remaining circumstances set out in section 37(2) do not arise.

Section37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Courtin The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26) (-�the Rotunda case-�). It is noted that a public interest should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both 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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

TUSLA says that the public interest in the continued protection of sensitive personal information, and in protecting privacy rights, outweighs the public interest in granting access to the records. I am satisfied that placing the relevant details in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant and/or his children.

The applicant does not make any specific comments about the public interest in the disclosure or otherwise of the withheld details. As noted, he says that the records are relevant, and very important to his family. I accept that disclosure of the details will provide him with further information regarding TUSLA-�s involvement with his family. However, this does not mean that there should be no protection of privacy rights of other individuals. Furthermore, I do not believe it is appropriate to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant may not be happy with the actions of TUSLA or any other party.

It seems to me that by releasing some records in full and in part, TUSLA has sought to strike a balance between the competing interests. Having regard to the nature of the remaining information at issue, I am aware of no public interest factors in favour of its release that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

It should be noted that the information I have found to be exempt under section 31(1)(b) would also be exempt under section 37 for the reasons set out above.

Section 37(8) -� access by certain categories of person to personal information of minors and of deceased individuals

Sadly, the applicant-�s former wife, and Child A-�s and Child B-�s mother, is deceased. In the circumstances, I have considered whether the applicant is entitled to access to information further to Regulations made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act. Generally speaking, these provide for access by a parent to records of a minor child, and for access by certain third parties, including the spouse, to records of a deceased individual.

It is important to note that the Regulations do not provide for the release to the parent/ spouse of the personal information of any party other than the relevant minor/deceased person. Neither do they provide for the release to such a requester of the personal information of the minor/deceased person where that is joined to the personal information of any other party. The Regulations are not relevant to any records or parts of records that I have found to be exempt under section 31(1)(b). Accordingly, they concern only a subset of the withheld information at issue in this case.

TUSLA confirms that its initial decisions did not have regard to the Regulations but it makes brief arguments, as set out below. The Investigator invited the applicant-�s comments and he makes no specific argument other than the general remarks outlined earlier. He also can be taken as contending that he should be given access to any withheld personal information that relates only to his late former wife, and/or such information that is inextricably linked to personal information about him and/or his children.

Access to information relating to the applicant-�s late former wife

The Regulations (S.I. No. 218 of 2016, as amended by S.I. No. 558 of 2016), provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

The Regulations state that the term -�spouse-� includes, in addition to a lawful spouse:

• a party to a marriage that has been dissolved, being a dissolution that is recognised as valid in the State, and a person who is living apart from his or her spouse pursuant to a deed of separation;
• a man or woman who was not married to, but cohabited as a spouse with, the deceased individual; and
• a civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No.24 of 2010).

I must also take into account Guidance that was published in May 2017 by the Minister for Public Expenditure and Reform under section 48(1) of the FOI Act (i.e.Central Policy Unit Notice 25, available onwww.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidelines when performing their functions under the FOI Act. Factors referred to in the Guidance include:

• the confidentiality of personal information, as set out in section 37(1) of the FOI Act
• whether the deceased would have consented to the release of the records to the requester when living
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records
• whether release would damage the good name and character of the deceased
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death
• the nature of the records to be released.
• whether the requester can get the information they want without accessing the records of the deceased
• any other relevant circumstances that the requester may set out.

I have outlined the various matters relevant to the public interest consideration at section 37(5)(a). However, I also must bear in mind that the comments in the Rotunda case were made in relation to the requirements of FOI legislation in general and not to the very specific and detailed provisions covering access by spouses etc. to records of deceased persons. The Regulations and guidance make it clear that a range of matters such whether the deceased would have consented to the release of the records to the requester when living, the nature of the records to be released, and "any other relevant circumstances" must be considered. Therefore, matters which may be seen as private interests cannot be excluded solely on the basis that they are not public interest factors. At the same time, however, the Regulations explicitly recognise a public interest in preserving the confidentiality of personal information.

TUSLA says that the applicant and his late wife were separated for some time before her death and that, in all of the circumstances, he is not entitled to access to information about her. While it does not comment specifically on the public interest consideration required by the section 37(8) Regulations, I note TUSLA-�s general position regarding the weight of the public interest in the continued protection of sensitive personal information, and in protecting privacy rights.

I also note the applicant-�s views regarding the relevance and importance of the records to him and his children. It is the case that disclosure of the relevant details will provide him with at least some further information regarding TUSLA-�s involvement with his family.

I have examined the records closely and it appears likely to me that the deceased would not have consented to the applicant having access to her records when she was alive. Having regard to this, and in the context of the particular circumstances of this case, in my view the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by refusing to grant the applicant access to personal information relating to his late former wife.

Access to information relating to Child A and Child B

TUSLA says that it has provided the applicant with information about his children, other than where this is inextricably linked to personal information relating to third parties. Having examined the withheld details, and in light of the Commissioner-�s approach to section 18 of the FOI Act, I am satisfied that this is the case. Therefore, I see no need to set out or consider the relevant Regulations.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA-�s decision. I find that the records are exempt under sections 31(1)(b) 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.

Deirdre McGoldrick
Senior Investigator