Whether TUSLA was justified in deciding to refuse access to parts of the applicants' fostering files on the grounds that the records are exempt from release under sections 31, 35 and 37 of the FOI Act

28 March 2018 

Background

TUSLA received a request on 17 May 2017 for access to information relating to the applicants and held by TUSLA, Waterford between 1 August 2016 and 12 May 2017.  The request also sought access to information held by TUSLA, Dublin between 18 April 2016 and 12 May 2017.  The request was partially granted but access was refused to certain information on the basis of sections 15(administrative), 31(contempt of court), 35(confidentiality) and 37(personal information) of the FOI Act.  TUSLA treated this request as two separate requests, one for Waterford and one for Dublin, and so two decisions issued in this matter.  For the purposes of this review, and as the applicants submitted one request, the application for review will be treated as a whole.

The applicants sought an internal review of the decisions to refuse access to certain information and on the 24 August 2017 and 29 August 2017, TUSLA affirmed the original decisions.  On 15 August 2017, the applicants applied to this Office for a review of TUSLA's decision. 

I have decided to conclude this review by way of a formal, binding decision. In conducting the review I have had regard to TUSLA's decision on the matter; TUSLA's communications with this Office; the applicants' communications with this Office; communications between the applicants and TUSLA on the matter and the content of the withheld records provided to this Office by TUSLA for the purposes of this review.

Scope of the Review

In the schedule provided with the records TUSLA identified 158 records as coming within the scope of the request in Waterford.  66 were released, partial access was granted to 27 records and access was refused to 65 records on the basis of sections 31, 35 and 37 of the FOI Act.  In the schedule relating to records found in Dublin, access was granted in full to all records save one record to which partial access was granted. 

During the course of this review a further 45 records were identified as coming within the scope of the applicants' request.  Access was granted in full to 23 of those records.  Access to 9 of the records was refused on the basis that they had been dealt with in a previous decision of this Office and access to 9 records was refused on the basis that they were duplicates of records already dealt with above.  The schedule notes that record A4 is refused on the basis of section 31, but goes on to note that this record is a duplicate of records 78/79 of the original Waterford schedule and so I include it in the list of duplicated records.  Access to two records was refused on the basis of sections 31(1)(a) and (b) and access was partially granted to two further records, with some redactions made on the basis of section 37 of the FOI Act. 

The applicants had previously made a request for a review to this Office and a decision on that request was made in Case Number 160543.  Nothing in this review has indicated to me that there has been any material change in circumstances since that decision and so I do not propose to reconsider the records already addressed in Decision 160543.  I therefore accept that the 9 records referred to above are outside the scope of this review, and am also satisfied that the 8 records identified as duplicates are in fact duplicates.  From the further records identified, therefore, I consider that 5 remain to be considered in this review. 

The applicants also raised the issue of missing records.  They noted that they did not have the attachments referred to on record 93 of the Waterford schedule and that an email must exist to accompany a document identified as C1 on the later Waterford schedule.  In relation to the attachments to record 93, I can confirm that the letter referred to is included in the schedule at numbers 8-10 and therefore included in the scope of the review.  The remaining attachments are publically available on the TUSLA website and so will not be included in this review.  Finally, following enquiries by this Office to TUSLA in relation to a cover email to record C1, I am satisfied that there is no such cover email.   

Having regard to TUSLA's schedules of records, this review is concerned with whether TUSLA was justified in refusing access to certain information under sections 31, 35 and 37 of the FOI Act. I will refer to the redacted parts of the partially granted records and the withheld records collectively as "the records". I have adopted the numbering used by TUSLA in its schedules of records. 

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points.

First, the records which TUSLA provided to this Office contain a significant number of duplicates and many are numbered in the wrong order. This made the review process more protracted and less straightforward than it should have been. It is incumbent on FOI bodies to put the resources in place in order to be able to deal with FOI requests and reviews appropriately.

Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on TUSLA to satisfy me that its decision is justified.

Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is very limited.

Fourthly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 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, I am not in favour of the cutting or "dissecting" of records to such an extent.

Finally, with certain limited exceptions (e.g. sections 37(2) and 37(8), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Section 31 - Legal Professional Privilege and Contempt of Court

Section 31(1)(a) states 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.  There are two types of communication that may be protected by this exemption: confidential communications made between a client and their 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 the dominant purpose of which is to prepare for contemplated/pending litigation (litigation privilege). 

Section 31(1)(b) requires that records be withheld where it is known, or ought reasonably to be known, that their disclosure would constitute contempt of court.

In this case, it appears that there were two sets of legal proceedings in process under the Child Care Act regarding the care of a foster child. 

Records numbered 69, 76, 78, 79, 80, 83, 84, 85, 88, 89, 94 and 95 consist of correspondence between TUSLA and its legal advisor, or disclosing notes of conversations between TUSLA and its legal advisor, in relation to these proceedings.  Records 8, 9 and 10 consist of a draft letter that was sent to TUSLA's legal advisor in order to obtain legal advice on its contents in the context of the above mentioned proceedings.  I am satisfied that these communications contain confidential communications between the client and a professional legal advisor, the dominant purpose of which was to prepare for litigation.  I find therefore that those records are exempt on the basis of section 31(1)(a). 

It is very important to note that childcare proceedings are held in camera and it is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority.  I consider that some records discussed below, such as a Social Work assessment and Foster Care Report, which contain personal information to be exempt under section 31(1)(b) as their disclosure would be contempt of court. 

I therefore find that such records are exempt under section 31(1)(b).  The section 31 exemptions are not subject to a public interest balancing test. 

TUSLA also applied section 31(1)(a) to record number 118.  However, the contents of this record (an email) relate to the organisation of a meeting of various parties.  It does not appear to contain any confidential communication, nor does it impart or obtain any legal advice.  I do not think that the proposal of a meeting can properly be said to be a confidential communication.  I therefore do not accept that section 31(1)(a) applies to this record.  I direct release of the record, subject to the redaction of any identifying details of third parties (except for staff members of FOI bodies). 

Section 37 - Personal information

I will now deal with the balance of the withheld, and partially withheld, records. 

Sections 37(1) and 37(7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term -�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.  The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include -�(i) information relating to the educational, medical, psychiatric or psychological history of the individual-� and -�(xiv) the views or opinions of another person about the individual-�.

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

The records relate to: the applicants' fostering of a particular child; the welfare of that child; the child's placement in a new foster home; parents of children in foster care and other third parties. They include information relating to the educational and medical history of individuals other than the applicant, in addition to views or opinions about individuals other than the applicants. The majority of the records contain information which relates to a third party. Accordingly, the release of those records would involve the disclosure of personal information relating to individuals other than the applicants. I therefore find that the records are exempt from release under sections 37(1) and 37(7) of the FOI Act.

In theory, one could extract certain words or phrases from these records which relate solely to the applicants. However, those words and phrases appear in the context of other words and phrases which relate primarily to the care and welfare of a child in foster care. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. My findings under sections 37(1) and 37(7) are subject to the provisions of sections 37(2) and 37(5), which I examine below.

Section 37(2)

I am satisfied that none of the circumstances in section 37(2) apply to the records which I have found to be exempt under sections 37(1) and (7) above. That is to say, (a) the information contained in the remaining records does not relate solely to the applicants; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

In relation to the issue of the public interest, it is important to have regard to the 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 ("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.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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. Accordingly, when considering section 37(5)(a), privacy rights will 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.

In my view, the information which the remaining records contain is inherently private. It relates principally to the history of a child in foster care and to their welfare, as well as to family members of the child. I consider this to be highly sensitive information, which is extremely personal to the third parties concerned. I cannot identify a public interest which would override the Constitutional rights to privacy of the children and other third parties to whom these records relate. I therefore find that section 37(5)(a) does not apply in the circumstances.

It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Section 37(8)

Regulations have been made by the Minister in relation to FOI requests where the requester is the parent or guardian of a child to whom the record relates. It has not been argued that the applicants are the legal guardians of the third parties and I have no reason to believe that this is the case.

Section 35 - Confidentiality

TUSLA also cited section 35 in respect of record numbers 19-32 and 33-54.  However, as I have found above that sections 37(1) and 37(7) apply to these records then it is not necessary for me to go on to consider the potential application of section 35. 

Finding

Having regard to the above, I find that TUSLA is justified in refusing access to the records under sections 31 and 37 of the FOI Act, with the exception of record 118 and I direct release of that record, subject to the redaction of any third party personal information to include names of individuals other than the applicants, TUSLA staff members and contractors. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary TUSLA's decision.  I annul its decision to refuse access to record 118 and direct release of that record with the redaction of the names of individuals other than the applicants (except for staff members or contractors of FOI bodies). I affirm its decision to refuse access to the remaining records, under sections 31(1)(a), 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan

Senior Investigator