Whether the Agency was justified in its decision to refuse a request under sections 35(1)(a) and 37(1) of the FOI Act, for access to foster care records concerning the applicant

18 October 2019

Background

On 24 January 2018, the applicant requested access to records relating to the period of time she was in foster care and in residential care homes between 1971 and 1989.  Where records were created before the commencement of the FOI Act in relation to an FOI body (pre-commencement records), they are excluded from the FOI Act unless section 11(5) of the FOI Act applies. Section 11(5) provides that access to pre-commencement records may be granted if it is necessary or expedient to understand records created after the commencement of the FOI Act, or if the records relate to personal information about the requester.

Prior to issuing its original decision, the Agency advised the applicant that it did not hold records relating to residential care homes. However, the Agency provided the applicant with details of other FOI bodies to whom she could make separate FOI requests (section 12(4) of the FOI Act refers).

On 9 April 2018, the Agency granted access in full and in part to certain records and refused access in full and in part to others on the basis of section 35(1)(a) (Information obtained in confidence) and section 37(1) (Personal information) of the FOI Act.  Following a request for an internal review, the Agency varied its decision on 10 October 2018. It granted access in full and in part to further records and affirmed its decision on the remaining records on the basis of sections 35(1)(a) and 37(1) of the Act. On 11 April 2019, the applicant applied to this Office for a review of the decision of the Agency.

In her internal review request the applicant refers to a separate FOI request (FOI 15114) to another FOI body for access to medical records. It is important to note that the outcome of that request is not within the scope of this review.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to submissions received from applicant and the Agency. I have also had regard to the contents of the records which I have carefully examined.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Agency was justified in deciding to refuse access, in full and in part, to records on the basis of sections 35(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

The applicant explained why she is seeking access to records and I appreciate the very personal reasons expressed by her. However, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. I appreciate the views expressed on the applicant’s behalf in relation to the best interests of persons who were separated from their families of origin. However, I can direct release of personal information only where I find this to be in accordance with the provisions of the FOI Act.

I also draw attention to 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 18 of the 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 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

While I am required by section 22(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.  This constraint means that the detail that I can give about the content of the records and the extent to which I can describe certain matters in my analysis is limited.

I note that copies of a small number of records provided to this Office are barely legible. This may be due to the age of some records dating back to the early 1970’s. The applicant did not refer to matter of legibility but she did mention that some records did not appear to be properly copied. While the Agency seems to have addressed this, I would remind FOI bodies that section 17(2) of the FOI Act provides that where a body decides to grant access to records in a particular form or manner, such access must be given in that form or manner unless the body is satisfied that, among other things, access in another form (as set out in subsection (1)) would be significantly more efficient.

Analysis and Findings

Are further records held?
In her application for a review the applicant said that “the HSE and/or [the Agency] have not been able to locate [her] “extensive medical records””.  It is not clear whether the applicant was querying the adequacy of searches made by the Agency in the decision to which this review relates on the basis of section 15(1)(a) of the FOI Act. However, during the review the investigator informed the Agency of the applicant's reference to the location of records.

Section 15(1)(a) of the FOI Act allows a public body to refuse a request on the basis that it has taken all reasonable steps to locate all records within the scope of a request or that the requested records do not exist. In reviewing any such decisions, it is not normally the function of this Office to search for records.

The Agency said that it processed records that relate to the applicant’s child care services only and that a number of services under the remit of the HSE were progressing other health service-related aspects of the applicant’s original request. The Agency said that it had advised the applicant of other FOI bodies that may hold records relevant to the wide scope of her original request.

I do not consider that this Office has any basis on which to find that the Agency holds further records falling within the scope of the request which it has withheld. I have no reason to believe that the Agency holds the applicant’s medical records. If the applicant has identified specific additional records which she believes are held by the Agency, it is open to her to consider making a fresh request for access to those. Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps.
 

Section 37 - Personal information

The Agency refused access to a number of records on the basis of section 35(1)(a) (Information obtained in confidence). However, given the extent of personal information that appears in them, I will first consider those records on the basis of section 37(1). In her application, the applicant argued that some of the redactions in the records most likely relate to persons who are now deceased. I will deal with such records first.

Section 37(1) requires, subject to the other provisions of the section, an FOI body to refuse a request where access to the records would involve the disclosure of personal information, including personal information relating to a deceased individual. However, under subsection (8), Regulations have been made by the Minister for Public Expenditure and Reform which provide for access by certain third parties, including the next of kin, to records of a deceased individual.

The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016), as amended, provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

The records held by the Agency are in a file in the name of the applicant. While I am limited in my description of the records by section 25(3), I can say that they include information relating to the applicant, children in foster care, extended family members (some of whom, according to the applicant and some of the records under review, are deceased) and other third parties.

The Agency did not have regard to the provisions of section 37(8) and Regulations in its decision because it took the request to be for access to personal information of the applicant. It also stated that the applicant did not specify that certain family members were deceased and that the Agency had not considered this at the time the applicant’s original request was made. I considered whether to annul the Agency’s decision and remit the matter for a fresh decision. In the circumstances, I decided that no purpose would be served by this and I invited the Agency to make a submission to this Office in consideration of section 37(8) and the relevant Regulations. The Agency subsequently made a submission and provided sufficient information to allow me to consider the withheld information in the context of the regulations where relevant. The applicant’s representative was informed that section 37(8) applied to the request. The representative contacted the Investigator who explained the provisions.

Pursuant to section 48(1) of the Act, the Minister for Public Expenditure and Reform published guidance concerning access to records relating to deceased persons. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act. The guidance states that it is a matter for the decision maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:

• the confidentiality of personal information as set out in section 37(1)
• whether the deceased would have consented to the release of the records to the requester when living
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records
• would release damage the good name and character of the deceased
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death
• the nature of the records to be released. The guidance states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. In relation to medical records in particular, it states that due regard should be had to the confidentiality of medical records in accordance with the relevant Irish Medical Council guidance (currently the Guide to Professional Conduct and Ethics for Registered Medical Practitioners - 8th edition published May 2016)
• whether the requester can get the information they want without accessing the records of the deceased

The applicant says release of the withheld information would assist in her understanding of how she was treated as a child in care, periods of which she says caused her great distress.

The Agency stated that information is withheld in records on the basis that it refers to personal family issues, matters relating to health, welfare and names of individual third parties. It stated that some of the information is of a sensitive nature and that other information refers to family members who may not be deceased. It also said that granting access in part to withheld information in certain records about other family members and third parties would not be appropriate and that the information would be misleading. The Agency said that it is not possible for it to say whether the deceased relatives of the applicant would have consented to the release of the withheld information.

I note a comment in the Agency’s submission that there is no indication that the applicant has “any nominated legal standing in relation to her parents”.  The Agency also referred to there being no indication of whether a Will existed in relation to any of the deceased. This may have been said in consideration of whether the applicant may be entitled to access to the records as a personal representative of the deceased acting in due course of administration of any potential estate of her parents. Next of kin and personal representatives of the deceased acting in due course of administration of his or her estate are entirely separate categories of requester for the purposes of the Regulations. I do not believe that it is in dispute that arrangements for release of personal records would not have been outlined in any will of the deceased.

On the matter of where the public interest lies and the factors to be considered, this Office generally has regard to the obiter comments of Macken J. in the Rotunda case [The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v the Information Commissioner[2011] 1 IR 729, [2011] IESC 26, a link to which is available on www.oic.ie]. 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.

I acknowledge that the applicant is anxious to have access to as much in information as possible about her family and to try to answer questions she about what happened to her. The fact that the Agency has already released some relevant information goes some way towards serving the public interest in accountability around the applicant’s time in foster care.

The Agency said that it considered the public interest in favour of releasing withheld information including the public interest in knowing how a public body performs its functions in a fair manner, in accessing accurate information that may be relevant to the requester and, in certain circumstances, her relatives. However, in arguing against release of the withheld information, the Agency said that it considered the public interest to weigh in favour of protecting the right to privacy of members of the public and that the public should be able to communicate with public bodies in confidence without fear of disclosure in relation to personal or sensitive matters. It said that by the nature of the records, the information is sensitive and highly confidential. It stated that it considered whether the applicant’s request was in the form of a private interest and noted that release of information under FOI is “to the world at large”.

It is important to note that by making the relevant Regulations, the Oireachtas has determined that the next of kin shall have a right of access to the records of deceased persons, subject to consideration of the public interest and all the circumstances. The Regulations and guidance make it clear that a range of matters such as whether the deceased would have consented to the release of the records to the requester when living, the nature of the records to be released, and "any other relevant circumstances" must be considered. Therefore, matters which may be seen as private interests cannot be excluded solely on the basis that they are not public interest factors.

I accept that there is a public interest in openness and accountability in relation to the manner in which the Agency carries out its functions, including how it deals with children who were in foster care. There is also a public interest in members of the public knowing what information is held about them by public bodies. On the other hand, there is a public interest in members of the public engaging with the Agency being able to communicate frankly and in confidence in relation to personal or sensitive matters.

The question I have to consider is whether it is appropriate to direct the release of the third party personal information on the basis of what is essentially, a private interest that the applicant has in the release of the withheld information in the records. In addition, it is not possible to know the wishes of the deceased persons as regards release of the records to the applicant as a next of kin.

I accept that as records released pursuant to the FOI Act are released without any restriction as to how they may be used, such release is regarded, in effect, as release to the world at large. This is true of all records released under FOI regardless of the identity of the requester. Indeed, it is also true of requests where the requester seeks his/her own personal information. Nevertheless, the fact remains that the Oireachtas saw fit to determine that access to the records of deceased persons shall be granted to certain categories of requesters, provided the requirements of the Regulations have been met. Accordingly, I do not accept that the fact that the release of records under FOI is essentially release to the world at large provides a reasonable ground for refusing access to a category of requester that the Oireachtas has determined should be granted access.

With reference to the guidelines as set out above, I am satisfied that some of the information in the records is confidential, inherently private and sensitive concerning relatives that the applicant has stated are deceased.  I find that release of this information is not appropriate under the Regulations having regard to the various factors listed in the Guidelines. However, I am not satisfied that granting access to some of the withheld information in the records will disclose confidential, private or sensitive information of the type described by the Agency. Neither am I satisfied that release of certain records in part will be misleading.

I take the view that the public interest, including the public interest in the confidentiality of personal information, would not on balance be better served by granting access to such information.

I am not satisfied that the Agency has justified its refusal of the applicant's request for access to all the withheld information in the records under section 37(1). In my view, having regard to all the circumstances, the public interest would on balance be better served by granting than by refusing to grant the applicant's request in relation to some of the records relating to family members who are deceased and to whom she is next of kin. I therefore find that the Agency was not justified in refusing the applicant's request for access to certain withheld information in the records as identified in the appendix attached to this decision.

Personal Information relating to other parties
Some of the records held by the Agency contain references to a number of third parties, in respect of whom if deceased I cannot be certain that the applicant is the next of kin, as well as persons who are still living. I cannot apply the Regulations do not provide for a right of access to such information. Section 37(7) provides for the mandatory refusal of a request where access to the record would in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester (joint personal information).

Section 2 of the Act includes an exclusion to the definition of personal information that relates to members of staff of an FOI body. It states that in a case where the individual holds or held a position as a member of staff of an FOI body, personal information does not include the name 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. Similarly, where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service does not comprise personal information.

I am satisfied that, with the exception of record 81, the remaining withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals i.e. joint personal information.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which sections 37(1) and (7) do not apply. I am satisfied that none of those circumstances arise in this case.

Section 37(5) - The Public interest

Section 37(5) of the FOI Act provides that a request that would fall to be refused under sections 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(s) to whom the information relates, or (b) the grant of the information would be to the benefit of the person(s) to whom the information relates.

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(5)(a)
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.

The FOI Act itself recognises a 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.

I am satisfied that record 81 does not contain personal information of identifiable individuals other than the applicant.

As regards the remaining withheld information, I accept that the grant of access to those records would serve the public interest in ensuring the Agency’s openness and transparency about how its predecessor engaged with the applicant and her family. However, I accept that directing access to such information would involve a significant breach of privacy.

On balance, I find the weight of the public interest in favour of granting these parts of the request is not such that the right to privacy of the individuals concerned should be breached.

Accordingly, I direct the release of record 81 and find that section 37(1) of the FOI Act applies to the remaining withheld information in the records.

Given my findings under section 37 of the FOI Act, there is no need for me to consider the section 35(1)(a) exemption in this review, since I am satisfied that this would have the same outcome as that detailed above.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Agency’s decision and direct it to release the parts of records identified in the Appendix attached to this decision.  I find that any remaining parts of those records are exempt from release under section 37 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

 

Appendix to decision OIC-53423-R2H7G1

The Senior Investigator directed the release of withheld information as follows:

Records 11, 14,

Record 15 – All text at entry for 02 October 1973, except the fourth, fifth and sixth and last sentences.

Records 19, 20

Record 21 – Text at entry for 13th August 1974, beginning “Visited… [and ending at]

 …any arrangements”, i.e. except for the last sentence.

Records 23, 24, 28, 34, 37, 40,

Record 53 – The eighth sentence beginning “I have been” and ending with the applicant’s name.

Records 54, 56, 76, 81, 117, 122, 123 and 137