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Case Number: 160316

Whether the Department was justified in refusing access to certain information relating to significant event notifications or incident reports for Acorn Lodge Children's Residential Facility under section 37(1) of the FOI Act

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 20 August 2015, the applicant submitted a request to TUSLA for certain statistical information relating to Significant Event Notifications (SENs) or Incident Reports for the children's residential centre, Acorn Lodge, from the date of its opening in 2011 until the date of its closure in 2013. She also sought access to SEN committee logs and SEN committee meetings for the same period.

TUSLA identified 179 pages of records as coming within the scope of the applicant's request and it decided to part grant the request. The applicant sought an internal review of that decision on 7 January 2016 following which TUSLA affirmed its original decision. It is worth noting that TUSLA's internal review decision did not issue until 20 July 2016, following intervention by this Office. The applicant sought a review by this Office of that decision on 27 July 2016.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between TUSLA and the applicant as set out above, and to the communications between this Office and both the applicant and TUSLA on the matter. I have also had regard to the contents of the records at issue, copies of which were provided to this Office for the purpose of conducting the review. In referring to the records at issue, I have adopted the numbering system used by TUSLA during its processing of the FOI request.

Scope of Review

I must note at the outset that TUSLA's processing of the relevant records and the schedules provided with them, was most unsatisfactory. Valuable time and resources were spent by this Office attempting to obtain copies of the appropriate records and the schedules provided were contradictory and confusing.

During the course of the review, the applicant raised some issues about the records and schedules which she received. She highlighted that there were no minutes provided for July to November 2012 inclusive. Following engagements with this Office, TUSLA located 30 additional pages of records comprising minutes of SEN Review Group meetings held from August 2012 to December 2012 and granted partial access to those minutes. Those additional records have been incorporated into this review, bringing the total of pages considered to 209.

The applicant also highlighted that record 160 was illegible and was not referenced on the schedule. Record 161 was also not referenced on the schedule. It is my understanding that both of these records were released to the applicant, and that a fresh legible copy of record 160 was provided.

Finally, during the course of the review the applicant clarified that she did not require access to information relating to other residential centres contained in the Review Group meeting minutes. Records 40 to 153 and the additional 30 records located during the course of the review comprise minutes of SEN Review Group meetings. As the vast majority of the redactions to the meeting minutes concern residential centres other than Acorn Lodge, I have excluded those redactions from the scope of this review. Acorn Lodge is referenced on pages 106, 118, 124, 127, 128, 133, 135 and on pages 3, 10-13, 15, 16, 19, 26, 29 and 30 of the additional records.

All of the remaining redactions made by TUSLA were based on its view that the disclosure of the information concerned would involve the disclosure of personal information relating to third parties. Accordingly, this review is concerned solely with whether TUSLA was justified in its decision to redact information from the relevant parts of the records at issue.

Analysis and Findings

Section 37(1) of the FOI Act, subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. I should explain at the outset that the information at issue in this case is of a particularly sensitive nature. It relates to the behaviour of minors in the care of the State. The applicant acknowledges herself that the records are particularly sensitive as she stated in her initial application that she understands that no personal information on the children in care can be released. The question I must consider, therefore, is whether the release of the information at issue would involve the disclosure of personal information relating to the individuals to whom the information relates.

For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(i) information relating to the educational, medical, psychiatric or psychological history of the individual," "(vi) information relating to the criminal history of, or the commission or alleged commission of any offence by, the individual," "(ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose," "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual" and "(xiv) the views or opinions of another person about the individual".

The applicant argues that the information has been too heavily redacted. I disagree. In the particular circumstances of this case, I am satisfied that the withheld information is personal information relating to identifiable individuals and that the redactions were appropriate and proportionate. Accordingly, I find that section 37(1) of the Act applies to the information at issue.

The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. 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 information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In this case, the applicant has identified some specific public interest factors favouring release of the records. She argues that there is a public interest in the openness and transparency of public bodies in relation to matters of regulation and governance; that the public has an interest in knowing that when children are taken into the care of the State that they are treated in a manner that holds their best interest at the core of their care; that the public have a right of access to information on children who have been taken into the care of the State and that there is a public interest in officials being held to account for the decisions that they make.

The FOI Act itself recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions and there can be little doubt that there is of course a substantial public interest in ensuring the best interests of children who are taken into care. However, on the other hand, the Act also recognises the public interest in the protection of the right to privacy of those children. This is evident both in the language of section 37 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). 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 am also cognisant of the fact that disclosure of a record under FOI is, in effect, disclosure to the world at large, as the Act places no restriction upon the uses to which information released under FOI may be put.

Having regard to the nature of the particular information that has been redacted from the records at issue in this case, it seems to me that TUSLA has appropriately sought to strike a balance between optimising the public interest in ensuring openness, transparency and accountability and ensuring that the privacy rights of the individuals concerned are protected. In my view, the public interest in releasing the remaining information does not outweigh, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that TUSLA was justified in its decision to refuse access to the withheld information under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of TUSLA.

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