Whether TUSLA was justified in refusing access to records relating to the applicant for the years 1990 to 1997

9 December 2020

Background

In a request dated 26 November 2018, the applicant, through her legal representatives, sought access to all records held by TUSLA relating to her for the years 1990 to 1997. For the sake of convenience, all references to communications with the applicant in this decision should be taken to include communications with her legal representatives.

Following prolonged correspondence between the applicant and TUSLA to establish identity and in relation to consent from some family members of the applicant, TUSLA issued a decision on the request on 10 September 2019, in which it identified 41 pages of records as relevant to the request. It granted access to 12 pages in full and five further pages in part. The remaining pages were refused in full or in part under sections 31(1)(b), 35(1)(a), 37(1) and 37(7). The decision maker explained that she had extracted information relating to the applicant without revealing personal information of other members of her family. In referring to the records at issue in this case, I have adopted the numbering system used by TUSLA when processing the request.

The applicant sought an internal review of that decision on 4 October 2019, wherein she noted that written consent of two of the applicant’s children to the release of their personal information to the applicant had been provided to TUSLA.

On 18 November 2019, TUSLA issued its internal review decision, in which it varied the original decision and released additional information in four pages previously part released (records 29, 36, 40, and 41), one of which was now released in full (record 36), and part of two other records to which access had previously been refused in full (records 31 and 32).  It affirmed its refusal of the remaining records in whole or in part under sections 35(1)(a), 37(1) and 37(7). On 14 April 2020, the applicant sought a review by this Office of TUSLA’s decision.

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 the submissions made by the relevant parties.  I have also had regard to the contents of the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In its internal review decision, TUSLA relied on sections 35(1)(a) and 37(1) as grounds for refusing access to certain records, in whole or in part. During the course of the review, it also argued that record 21 was also exempt from release under section 42(m).

Therefore, this review is concerned solely with whether TUSLA was justified, under sections 35(1)(a), 37(1), and 42(m) of the FOI Act, in refusing access in full to records 3 to 21, 27, 28, and 30 and in refusing access to parts of records 29, 31, 32, 33, 40 and 41.

Preliminary Matters

Before I address the substantive issues arising, I would like to make some preliminary points. First, section 18(1) of the Act provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.  Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Secondly, section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As a consequence, the descriptions I can give of the nature of the records or the reasons for my findings in this case are necessarily limited.

Finally, it is important to note that the release of a record under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which a record released under the Act may be put.

Analysis and Findings

TUSLA relied on section 37 to refuse access to all of the information at issue, apart from record 21, which was refused in its entirety under section 35. In my view, section 37 is also of relevance to that record, and in light of TUSLA’s arguments for withholding the record, I have decided to consider the applicability of section 37 to all of the records at issue in the first instance, including record 21.

Section 37   

Section 37(1)

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. 

TUSLA has described the records at issue in this case as records relating to welfare concerns reported to TUSLA regarding a minor. They relate to the applicant and her family and contain inherently private and sensitive information relating to the applicant and other members of her family.

Records 4/5 comprise a single item of correspondence. Records 6/7 and 8/9 are file copies of that correspondence while records 10 to 12 comprise a hand-written version of that same item of correspondence.  Records 13 to 20, and record 21, comprise two reports prepared by a Hospital. Records 3, 27, 28, 29, 30, 31, 32, 40 and 41 are case notes.  Record 33 is a specific authorisation signed by the applicant.

Having carefully examined the records I find that all of the information at issue falls within one of two categories of information, namely:

(i) personal information relating to individuals other than the applicant, and
(ii) joint personal information relating to the applicant and one or more other parties.

I find that section 37(1) applies to all of the information at issue.

Section 37(2)

There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. Subsection (2)(b) provides that section 37(1) does not apply if any individual to whom the information relates consents, in writing or such other form as may be determined, to its release to the requester. 

During the processing of the request by TUSLA, two of the applicant’s adult children provided their written consent to the release of their personal information to the applicant. The applicant also provided telephone contact details for both. As such, it would appear, on its face, that section 37(1) cannot apply to any information that relates solely to either of these two children or both, or to any information that relates jointly to the applicant and to one or both of these children.

During the course of the review, TUSLA expressed particular concerns about the release of some of the information at issue, given its particularly sensitive nature, including record 21. That record relates to the applicant’s daughter and I am satisfied that the record comprises personal information relating to the daughter, apart from a small part which is joint personal information relating to the applicant and her daughter.

TUSLA said that record 21 and other records contain particularly sensitive information about the applicant’s daughter and that the consent given could not be considered an informed consent as it was not clear that the person was sufficiently aware of the nature or content of the records. In particular, TUSLA argued that whilst consent was given, the consent given was not absolute, unambiguous consent considering the nature of the record and content therein. It said that if the record were to be released to the requester, based on the original consent acquire, it should first be disclosed to the person whom the record relates. It argued that the information is of such a sensitive nature that it should also be disclosed by a trained professional and that TUSLA would assign this to a Social Worker as the record may have a detrimental effect and be prejudicial on the mental health, well-being or emotional condition on the person to whom the record relates.

TUSLA added that prior to any due consideration relating to the release of the particular record, or any other such record with such highly sensitive information, the person to whom the record relates should be informed of the content and give unambiguous, clear and informed consent regarding the record and the nature of its release. It said that in this instance, the person to whom the record relates has not been informed of the content of the record.

It seems to me that TUSLA could have taken the steps outlined above when processing the request to ascertain if the consent given was, indeed, absolute and unambiguous. However, it did not do so. While this Office was fully satisfied that the information at issue was highly sensitive, we were not satisfied it would be appropriate to simply treat the consent at issue as uninformed consent based solely on the concerns expressed by TUSLA. Accordingly, this Office notified the applicant’s daughter of the request as an affected third party and sought to establish that the consent was given in circumstances where the sensitive nature of the information was generally known to her. The applicant’s daughter subsequently confirmed that the consent given was informed consent, and I am satisfied that this is the case.

In the circumstances, I find that section 37(1) does not apply to any of the redacted information that comprises (i) personal information relating solely to either or both of the applicant’s children who gave their consent or (ii) joint personal information relating to the applicant and one or both of these children. For the avoidance of doubt, I find that section 37(1) does not apply to any part of record 21.

However, some of the information at issue also comprises personal information relating solely to third parties other than the applicant or her two children who gave their consent, or joint personal information that includes personal information relating to third parties other than the applicant or these two children. Consent has not been given by those parties for the release of such information, and I am satisfied that it is not appropriate to seek the consent of those parties to the release of the information.

Subsection (2) also provides for a number of other circumstances where section 37(1) does not apply (subsections 2(c), 2(d) and 2(e) refer). I am satisfied that those circumstances do not arise in this case.

Section 37(5)

Having found that section 37(1) applies to certain of the withheld information, I must also consider section 37(5). That section provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned.

In my view, the release of the information to which I have found section 37(1) to apply would not benefit the third parties to whom the information relates. I am satisfied that section 37(5)(b) does not apply.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave 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 Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

The information at issue in this case is of an inherently private and sensitive nature. In the circumstances, and given that the release of records under the FOI is regarded, in effect, as release to the world at large as I have explained above, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. I find that section 37(5)(a) does not apply in this case.

In summary, therefore, I find that TUSLA was justified in withholding all personal information that relates solely to third parties other than the applicant or her two children who gave their consent, and all joint personal information that includes personal information relating to third parties other than the applicant or these two children. I find that it was not justified in refusing access, under section 37(1), to any of the redacted information that comprises (i) personal information relating solely to either or both of the applicant’s children who gave their consent or (ii) joint personal information relating to the applicant and one or both of these children.

Section 35(1)(a)

TUSLA refused access to record 21 under section 35(1)(a) of the Act. That section provides for the mandatory refusal of a request if the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential. However, section 35(2), which dis-applies section 35(1) in certain circumstances, must be considered at the outset.

Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of, an FOI body or of such a service provider.

Record 21 is a report relating to the applicant’s daughter that was prepared by a member of staff of an FOI body. For section 35(1)(a) to apply, release of the record must constitute a breach of a duty of confidence owed to a person other than an FOI body or any of its staff. While it has not expressly said so, TUSLA’s argument appears to be that release of the record to the applicant would constitute a breach of a duty of confidence owed to the applicant’s daughter. In circumstances where I am satisfied that the applicant’s daughter has given her informed consent for her personal information to be released to her mother, I do not accept that such release would constitute a breach of a duty of confidence in this case. I find therefore that section 35(1)(a) does not apply to this record.

Section 42(m)

For the sake of completeness, I note that TUSLA also argued, in its submissions to this Office, that section 42(m) applies to record 21. That section provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been provided in confidence, while the third is that the information must relate to the enforcement or administration of the law.

The record at issue is a report prepared by another FOI body. While I fully accept that the FOI body in question deemed the record at issue to be a confidential report, I simply do not accept that its understanding of confidence extended to the record being withheld from the person to whom the information relates, given the nature and content of the record. Accordingly, in circumstances where the person to whom the record relates has consented to the release of the record to the applicant, I find that section 42(m) does not apply in this case.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of TUSLA. I affirm TUSLA’s decision to refuse, under section 37(1), all personal information that relates solely to third parties other than the applicant or her two children who gave their consent, and all joint personal information that includes personal information relating to third parties other than the applicant or these two children. I annul TUSLA’s decision to refuse, under sections 35(1)(a), 37(1) and/or 42(m), any of the redacted information that comprises (i) personal information relating solely to either or both of the applicant’s children who gave their consent or (ii) joint personal information relating to the applicant and one or both of these two children.

However, I do not propose to attempt to identify the precise information in the records that should be released. Many of the records at issue contain a mixture of exempt and non-exempt information, based on my findings above. Instead, given TUSLA’s expertise in relation to the subject matter of the records, I direct TUSLA to conduct a fresh decision making process on the request, having regard to my findings as set out above. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the TUSLA’s fresh decision.

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