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Whether TUSLA was justified in its decision to refuse access to records concerning the applicant's two daughters under sections 28 and 26 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 3 June 2014 the applicant made an FOI request to TUSLA for all social work documentation held in relation to herself and her two daughters "C" and "S". It is important to note at the outset that the Children and Family Services functions of the HSE were transferred to TUSLA on 1 January 2014. For the purposes of this review all references to TUSLA should be read as the HSE where appropriate. In its decision of 1 July 2014, TUSLA informed the applicant that it was granting her request in part. The applicant sought an internal review of TUSLA's decision and on 15 October 2014 the original decision was upheld by TUSLA. On 20 October 2014 the applicant applied to this Office for a review of this decision. Both the applicant and TUSLA made submissions in support of their positions. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.

In conducting this review I have had regard to correspondence between the applicant and TUSLA, to correspondence between TUSLA and this Office, to correspondence between the applicant and this Office, and to the contents of the records at issue.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

TUSLA said that the only information it holds relating to the applicant is contained in her daughters' files. The applicant's daughter "C" consented to the release of her social work records to the applicant. TUSLA released in part a file containing 58 pages of records in relation to "C". TUSLA granted partial access to the records contained at pages 1-10, 13-48 and 50-58; it refused access to the records contained at pages 11-12, and 49. TUSLA claimed section 28(1) and or 28(5B) applied to all of the records partially released or withheld. TUSLA also claimed that the records at page numbers 11-12, 21-32 and 49 were also covered by section 26 of the Act.

TUSLA released in part a file containing 51 pages of records in relation to the applicant's daughter "S". TUSLA granted partial access to the records contained at pages 1-19, 22-24 and 30-51; it refused access to the records contained at pages 20, 21 and 25 to 29. TUSLA claimed section 28(1) and or 28(5B) applied to all of the records partially released or withheld. TUSLA also claimed that the records at page numbers 21, 23, 25-29 and 31-44 were covered by section 26 of the Act. This review is concerned with the question of whether TUSLA was justified in its decision to refuse in full or in part access to the records outlined above on the basis that sections 28(1), 28(5B) and/or 26(1)(a) of the FOI Act applied to these records.

Preliminary Matters
The release of a record under FOI Act is considered, effectively, as release to the world at large. I am required by section 34(1) to give reasons for my decision; however, this is subject to the requirement of section 43(3) that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the circumstances of their creation is somewhat limited. Another matter to note is that, under section 8(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Analysis and Findings

Applicant's Submissions
The applicant pointed out in her submissions that she is the primary care giver to "C" and "S". The applicant submitted that on the basis of a review of the files provided to her, she was very concerned that information had been furnished to TUSLA which was misleading. The applicant also expressed her concern that information about her may have been provided maliciously. The applicant stated that she required the records so that she could pass them on to her solicitor.

TUSLA's Submissions
TUSLA submitted that the records partially withheld or withheld in full contain personal information of persons other than the applicant, or personal information about the applicant that is inextricably linked to the personal information of other persons. TUSLA submitted that these records are therefore exempt under section 28(1) and or section 28(5B) of the FOI Act. TUSLA also stated that certain records, as identified above, are exempt under section 26(1)(a) of the FOI Act in that that these records relate to information given to an employee of TUSLA in confidence and on the understanding that it would be treated as confidential. TUSLA said that in considering whether sections 28 and 26 should be applied to the records concerned, it carefully considered the public interest factors in favour of release and the factors against release and it decided that the public interest in favour of withholding/partially withholding the records outweighed the public interest that would be served by their release.

Section 28(1)
Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. The FOI Act defines "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. There is a large amount of duplication between the files relating to "C" and "S" as the matters arising were linked. The records in both files consist of contacts between social workers and Gardaí, social work records including letters, notes of meetings and notes of calls between social workers and the applicant, and/or notes calls between social workers and third parties. The information redacted from the records by the decision makers is not so extensive as to obscure the issues being examined by the social workers in this case. I am satisfied that, with one exception, the redactions are necessary to protect personal information of third parties. That exception concerns the redaction of the names of Gardaí and teachers throughout the records. Information relating to the performance of their functions by employees of public bodies is expressly excluded from the definition of personal information for the purposes of section 28. The definition of personal information contained in section 2 of the FOI Act does not include:

"(i) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of staff, of a public body, the names of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid"

The mere fact that a person is referred to by name in a record does not, necessarily, constitute personal information about that person. In this regard, I note that in his decision in Case No. 99146 Mr. X and the Southern Health Board (available on this Office's website at www.oic.ie) the former Commissioner, the late Mr Kevin Murphy, found that where Gardaí were acting in the normal course of their duties, their names did not qualify for exemption. Furthermore in Case No. 070211, it was noted that the Commissioner has taken the view that records which identify school personnel in the context of their normal professional duties and which do not contain confidential information about individual teachers in their private capacities should normally be released. In this case Gardaí and teachers were communicating with the social workers in the course of the performance of their functions. The redaction of their names was not, therefore, in accordance with section 28 of the Act and I find such information should be released to the applicant.

Section 28(2)
Section 28(2) of the FOI Act provides certain circumstances in which the exemption at section 28(1) does not apply, the circumstances include where for example the information relates to the requester, where the individual to whom the information relates consents in writing to its disclosure, where the information was given to the public body by the individual and the individual was informed before giving the information that it might be made available to the general public. As stated above the applicant's daughter "C" consented to the release of her social work records to the applicant. I am satisfied that none of the other circumstances identified at section 28(2) of the FOI Act arise in this case.

Section 28(5B)
The withheld records on the file relating to "C" are contained at pages 11-12 and 49. These records consist of notes of contacts between social workers and a third party which contain the personal information of the third party and the personal information of the applicant. The records withheld on the file relating to "S" are contained at pages 20, 21 and 25-29. These records consist of letters and notes of a conversation between social workers and a third party and contain the personal information of the third party and the applicant. In a situation where a record or part of a record contains personal information relating to the applicant, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 28(5B) provides for the refusal of a request for information which, if released, would result in the disclosure of personal information about other parties as well as about the applicant. Section 13 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. I am satisfied that information about the applicant in the withheld records is so intertwined with the personal information of third parties that it would be impractical to isolate it for possible release in any manner which would not make the information misleading. Accordingly, I find that section 28(5B) applies to the records which were withheld in full.

Section 28(5) - The Public Interest
Under section 28(5) access to the personal information of a third party may be granted where:

(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 do not believe that the grant of the information would be to the benefit of the third parties concerned and therefore section 28(5)(b) is not applicable in this case. In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 [more commonly referred to as the "Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". The FOI Act recognises a very strong public interest in protecting privacy rights - in both the language of section 28 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"). The right to privacy also 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 consider that there is a general public interest in openness and accountability as to the manner in which TUSLA carried out its functions in relation to the applicant's family. I am satisfied that the public interest in this case in openness and accountability has been met to a considerable extent by the release of the records concerning the applicant. I am not satisfied that the significant invasion of the privacy rights of third parties which would be the consequence of releasing the remaining records and parts of records is warranted. Having considered the matter carefully, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find therefore that section 28(5)(a) does not apply in this case.
Section 28(6) - Access by parents or guardians to the personal information of minors
Section 28(6) provides that parents and guardians can gain access to their minor children's personal information where, having regard to all the circumstances, access to the records would be in the minors' best interests. I have considered whether there is any personal information of the applicant's minor child "S" which could possibly be considered for release under this provision. Taking into consideration the position as regards sections 13 and 28(5B) as set out above, I am satisfied that any remaining information in the records about the applicant's minor child "S" is connected with the personal information of third parties to such an extent that it would be impractical to isolate it for possible release in any manner which would not make the information misleading. I find therefore that section 28(6) does not apply in this case.
Section 26
In its internal review decision TUSLA sought to rely on section 26(1)(a) as an additional reason to refuse access to certain records. Having found that these records are exempt under section 28, it is not necessary for me to consider the application of section 26(1)(a) to these records except insofar as it is relevant to the names of the Gardaí and teachers discussed above. However, before addressing the application of section 26(1), I will consider the application of section 26(2), as section 26(1) does not apply where the records fall within section 26(2). Section 26(2) provides:

"Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of a public body or a person who is providing or provided a service for a public body under a contract for services."

In the case of the records created by TUSLA which disclose names of members of An Garda Síochána and teachers, these records will be exempt under section 26(1) only where it is established that disclosure of the names would constitute a breach of a duty of confidence owed to the Gardaí and/or teachers. While the substance of these records may be confidential in relation to other individuals, I cannot accept that disclosure of the names of the individual Gardaí or teachers which were recorded in the carrying out of official duties by public servants i.e. contacts with social workers in connection with the family matters at issue, would breach a duty of confidence provided for by agreement, by statute or in equity.

In the case of the records created by An Garda Síochána which disclose names of Gardaí, section 26(1)(a) of the Act is relevant. It provides:

"a head shall refuse to grant a request under section 7 if the record concerned contains confidential information given to a public body in confidence and on the understanding that it would be treated by it 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 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"

I am not satisfied that the requirements set out in Section 26(1)(a) are met. I do not accept as reasonable the proposition that Gardaí would refuse to co-operate with TUSLA personnel in giving information relevant to the carrying out of duties in relation to child and family support matters if their names were released in this case.

I do not consider that TUSLA has met the burden of proof (section 34(12) of the FOI Act refers) in regard to this exemption insofar as it relates to the redacted names. Accordingly, I find that that section 26(1) does not apply to these parts of the records.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary TUSLA's decision. I uphold the decision of TUSLA that section 28(1) and/or 28(5B) applies to all of the withheld records with the exception of the names of Gardaí and teachers which information was created in the records when these individuals were acting in the normal course of their duties. I direct the release of this information to the applicant.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator