Whether TUSLA was justified in withholding certain information relating to third parties from records on the applicant's file under sections 26 and 28 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 10 December 2012, the applicant made a request to the HSE for access to records relating to her from the time of her birth up until 1990.  The HSE partially granted this request on 10 January 2014 but refused access to some information on the basis of sections 26 and 28 of the FOI Act.  The applicant, through her representative, sought an internal review of that decision on 22 August 2016.  TUSLA, having taken possession of the records in the intervening time, noted that the applicant's request for an internal review was made outside of the time frame permitted to submit such a request, but in all the circumstances opted to accept the application for internal review despite the passage of time.  On 30 September 2016 TUSLA affirmed the original decision to grant partial access to the records.  The applicant subsequently applied to this Office for a review of that decision.  

In carrying out this review, I have had regard to the correspondence between the HSE, TUSLA and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant's representative and TUSLA on the matter. In referring to the records at issue, I have adopted the numbering system used by the HSE in the schedule which accompanied its initial decision on the request.

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completed before the commencement of the 2014 Act shall continue and shall be completed as if the 1997 Act had not been repealed.

The making of a final, binding decision has taken longer than I would have wished.  This is due mainly to the volume of records involved.  I note also that in the course of the review TUSLA agreed to release parts of further records.  

Scope of Review

TUSLA identified 6 files of records relating to the applicant and her family.  The number of records on each file varied, but in all the records numbered approximately 1000 records, according to the accompanying schedules.  The files were numbered A-F and the records were identified numerically within those files.  

Arguably, some of the records do not come within the scope of the applicant's request as some of them refer exclusively to the applicant's siblings or other third parties.  However, TUSLA considered all records on the files and applied the section 28 exemption to any records that did not refer to the applicant.  On the basis that the records are held as files relating to an entire family, and the applicant is a member of that family, this review has considered the complete set of records provided by TUSLA.  

During the course of this review, TUSLA agreed to partially release a further 14 records to the applicant.

In summary, TUSLA released 63 records in full; 419 records were partially released to the applicant and access to 518 records was refused.  

Therefore, this review is concerned with whether TUSLA was justified in its decision to refuse access to information contained in 937 records, either in whole or in part, on the basis of sections 26 and 28 of the FOI Act.  

Preliminary Matters

Before I address the substantive matters arising in this review, I would like to make the following comments. Firstly, it should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large.

Secondly, section 8(4) states that any reason that the requester gives for the request shall be disregarded.  

The final point has to do with the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record.  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.  However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

TUSLA refused access to certain records on the basis of sections 26 and 28 of the FOI Act.  Section 28 seems to be the most relevant exemption to me and so I shall deal with that in the first instance.  

Section 28 - Personal Information
Section 28(1) of the FOI Act provides, subject to other provisions of section 28, 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. Furthermore, section 28(5B), also subject to other provisions of section 28, provides for the mandatory refusal of a request where access to the record at issue would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information.

The records the subject of this review comprise several volumes of files relating to a particular family.  They are sensitive records as they relate to social work involvement with the entire family.  The records disclose information relating not only to the applicant, but also to her parents, siblings and various foster families.  For the purposes of the FOI Act, the members of the applicant's family and any members of foster families are individuals other than the requester.  Some of the records in the various files do not refer to the applicant at all.  For example, some relate only to her parents and others only to her siblings.  Similarly, there are records that relate to both the applicant and one or more of these individuals.  

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 twelve 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 and (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". I am satisfied that all of the withheld information comprises either the personal information of third parties or joint personal information relating to the applicant and other third parties. I find, therefore, that sections 28(1) and 28(5B) of the Act apply to the information at issue.

The effect of sections 28(1) and 28(5B) 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 28 applies, which I will deal with below.  

Section 28(2) of the FOI Act sets out certain circumstances in which sections 28(1) and 28(5B) do not apply. I am satisfied that none of those circumstances arise in this case. 

Section 28(5) of the FOI Act provides that a request that would fall to be refused under sections 28(1) and 28(5B) 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 28(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.

The Public Interest
In relation to the issue of the public interest under section 28(5)(a), it is important to take note of the obiter 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 (which I shall refer to as the Rotunda case). 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.  Furthermore, in FP v Information Commissioner[2014] No.114 MCA, McDermott J stated that -œthe -˜public interest-™ in granting access is not to be determined on the basis of the appellant-™s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.  

Furthermore, as noted above, section 8(4) of the FOI Act provides that, subject to the provisions of the Act, in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. In relation to the question of the public interest, therefore, the reasons for a request are only relevant insofar as they reflect or overlap with what may be regarded as a "true" public interest.

In this case, the applicant's representative stated that the request is for the purpose of a civil action and argued that in light of the particular circumstances of the applicant's situation, the public interest is in favour of disclosure of the records. In my view, seeking access to records for the purpose of pursuing a civil action is essentially a private interest.  However, there is a strong public interest in ensuring the openness, transparency, and accountability of public bodies in relation to the manner in which they carry out their functions in dealing with matters such as arose in the particular circumstances of the applicant. 

On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in 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).  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. 

It seems to me that the public interest has been served to some extent in this case by the release, or partial release, of the vast majority of the records that relate specifically to the applicant.  TUSLA has attempted to strike a balance between making as much information as possible available to the applicant while seeking to protect the privacy rights of the third parties concerned.  The question I must consider is whether the public interest in releasing the remaining information sought outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates.  In my view, it does not. It seems to me that the release of the redacted and refused information will not enhance, in any significant way, the public interest in the transparency and accountability of TUSLA's predecessor, the HSE.  On the other hand, release of the redacted information, in circumstances where release under FOI is, in effect, disclosure to the world at large, would involve a significant breach of the privacy rights of the individuals concerned.  I find, therefore, that section 28(5)(a) does not apply.

In conclusion, therefore, I find that TUSLA was justified in its decision to refuse access to the withheld information under sections 28(1) and 28(5B) of the FOI Act. I do not, therefore, consider it necessary to proceed to consider the applicability of section 26 to any of the redacted or withheld records.

Decision 

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of TUSLA to refuse access to the records sought on the basis of section 28 of the FOI Act.

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 after notice of the decision was given to the person bringing the appeal. 

Elizabeth Dolan
Senior Investigator