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Case Number: 160238

Whether Tusla was justified in refusing the applicant's request for access to records relating to illegal adoptions on the basis that potentially relevant records pre-date commencement of the FOI Act and that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 18 January 2016, Tusla received from the applicant a request for all records held by it relating to illegal adoptions involving a specified facility.

Tulsa issued a decision on the applicant's request on 16 February 2016. It released a single record to the applicant, and refused the balance of his request under sections 15(1)(a) and 15(1)(c) of the FOI Act. On 1 March 2016, the applicant requested an internal review of Tusla's decision. Following a referral by the applicant of the matter to this Office on 28 April 2016, Tusla issued an internal review decision on 17 May 2016, in which it upheld its original decision. The applicant sought a review by this Office of Tusla's decision on 25 May 2016.

In the course of this review Tusla raised additional grounds for refusing access to the records sought. It submitted that some potentially relevant records pre-date commencement of the FOI Act, claiming that under section 11(4) of the FOI Act such records are not subject to FOI. Having raised the argument that a substantial amount of the records coming within scope of the applicant's request are not subject to FOI, Tusla no longer maintained that section 15(1)(c) of the FOI Act applies.

Tusla released to the applicant in the course of this review records consisting of emails between staff members. One record was withheld on the basis that while it purported to relate to the specified facility, subsequent investigations by Tusla revealed that the enquiry did not, in fact, relate to that facility.

Having received submissions from the parties, I have decided to conclude this review by way of a formal, binding decision. In carrying out this review, I have had regard to the correspondence between Tusla and the applicant as set out above and to the correspondence between this Office and both Tusla and the applicant on the matter.

Scope of Review

A review by the Commissioner under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner [2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

During the course of this review, Tusla made fresh arguments, that had not been raised in its decisions, claiming that many of the records sought by the applicant in fact pre-date commencement of the FOI Act. As this review is considered to be de novo, I am satisfied that it is appropriate to consider Tusla's arguments, notwithstanding that it now wishes to rely upon exemptions not originally applied in support of its refusal to grant the request.

Accordingly, this review is concerned solely with the questions of whether Tusla was justified, under sections 11(4), and 15(1)(a) of the FOI Act, in refusing the applicant's request for access to records relating to illegal adoptions on the respective bases that some potentially relevant records were created before the date on which the FOI Act took effect in relation to records held by Tusla (i.e. before 21 April 1998) and that no further relevant records apart from those already mentioned exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

As outlined above, in the course of this review Tusla adopted a different position in relation to the applicant's request to that set out in its original decisions. Nevertheless, I feel that it is appropriate in the circumstances of this case to comment briefly on certain aspects of the manner in which Tusla originally responded to the request, before considering its revised position.

Original Grounds for Refusal
In its original and internal review decisions, Tusla stated that it does not maintain a register of illegal adoptions and that it would therefore be necessary to consider in excess of 5,100 records relating to the facility in order to respond to the applicant's request. It accordingly applied section 15(1)(a) of the FOI Act, which allows for the refusal of a request where no record exists or can be found after all reasonable steps to ascertain its whereabouts have been taken, and section 15(1)(c) which permits an FOI body to refuse a request for records where the body considers that granting the request would cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the body.

Under section 15(4), before a body can refuse a request under section 15(1)(c), it must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4).

There is no evidence before me that Tusla sought to consult with and provide assistance to the applicant in relation to this request. Therefore, my view is that Tusla would not have been entitled to rely on section 15(1)(c) of the FOI Act. Moreover, the applicant was quite specific that he did not believe a general "trawl" would be necessary, but rather that he sought information on cases that had already been notified to Tusla.

Pre-commencement records
The FOI Act affords a right of access to records held by an FOI body that were created after the effective date for the FOI body concerned. As Tusla was a public body for the purposes of the FOI Acts 1997 & 2003, the effective date in this case is 21 April 1998. This means that any records held by Tusla that were created before 21 April 1998 are excluded from the FOI Act unless section 11(5) of the FOI Act applies. Section 11(5) provides that access to records created before the effective date may be granted where access is necessary or expedient to understand records created after the effective date or where the records relate to personal information about the requester.

In this case, the records at issue do not relate to the requester, a journalist. Furthermore, while the applicant was offered the opportunity specifically to comment on the applicability of section 11(5), he did not do so. Accordingly, I find that section 11(5) does not apply in relation to records falling within scope of the applicant's request pre-dating 21 April 1998.

As a significant number of the records held by Tusla potentially coming within scope of the applicant's request were created before 21 April 1998 and as I have found that section 11(5) does not apply, I find that Tusla was justified in refusing access to such records on the ground that no right of access arises under the FOI Act in relation to them.

The facility in question closed in 1971. The effect of my finding in relation to section 11(4) is that the applicant has no right of access to contemporaneous records relating to illegal adoptions that had taken place prior to 21 April 1998.

Section 15(1)(a)
In the course of this review, Tusla located further records, consisting of emails between staff members, which were released to the applicant. A further record was identified, consisting of a letter from an individual raising concerns about her adoption and referring to the facility. Tusla claimed that this letter was not within scope of the request, as subsequent enquiries had determined that there was no record of this individual at the facility. Having carefully considered the matter, I am satisfied to accept Tusla's explanation in this regard.

Other than the records referred to in the preceding paragraph and the record that was released to the applicant on foot of its original decision, Tusla claims that no further records within scope of the applicant's request can be found. Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence.

On foot of queries raised by this Office in the course of this review, Tusla stated that the applicant's request was considered as relating to unlawful registrations of birth, which refers to instances where a child's birth is registered by persons falsely claiming to be its parents. It claimed that it does not maintain a register of either of illegal adoptions or unlawful registrations. In its submissions, Tusla stated that the Adoption Authority of Ireland holds records relating to completed adoptions, and that such records would likely be excluded from FOI and could not be procured from the Adoption Authority. It stated that reports or suspicions that adoptions had been effected illegally would be referred by it to the Adoption Authority, and stated that it had not done so in any case relating to the specified facility.

Tusla submitted that its National Office for Adoption Services has responsibility for all matters within its remit arising out of Mother and Baby Homes. Tusla submitted that it searched hard copy files, electronic databases and emails in the attempt to locate relevant records. Further searches were carried out in the course of this review, with the relevant senior manager taking an active role in attempting to locate relevant records. Tusla's position is that the only relevant records located post-dating commencement of the FOI Act are those relating to an enquiry on behalf of the Department of Children and Youth Affairs. These records have been released to the applicant, and its position is that no further relevant records can be found.

I have no reason to doubt Tusla's submission, in particular having regard to its extensive interactions with this Office in the course of this review. Having carefully considered the matter, I am satisfied that all reasonable searches have been carried out. Accordingly, I find that Tusla was justified in deciding, under section 15(1)(a) of the FOI Act, that no further records coming within the scope of the applicant's request exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary Tusla's decision in this case. I find that no right of access arises under section 11(4) of the FOI Act in relation to the records held by Tusla pre-dating 21 April 1998 and find that section 15(1)(a) of the FOI Act applies in relation to the balance of the applicant's request, as no further records exist or can be found after all reasonable searches have been undertaken.

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