Whether TUSLA was justified in refusing access to the applicant-�s birth, fostering and adoption records under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found

6 April 2021

Background

In a request dated 22 November 2020, the applicant sought access to all records relating to his birth, fostering and adoption. In a late decision dated 27 January 2021, TUSLA refused the applicant-�s request under section 15(1)(a) of the FOI Act.  The applicant sought an internal review of that decision, following which TUSLA affirmed its original decision.  On 11 March 2021, 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 communications between TUSLA and the applicant referred to above and to communications between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether TUSLA was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for records relating to his birth, fostering and adoption on the ground that no relevant records exist or could be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

During the course of the review, this Office requested submissions from TUSLA about the searches it had undertaken to locate the records sought by the applicant. In response, TUSLA informed this Office that further searches should have been undertaken. It explained that the applicant-�s request had not been correctly directed to the National Adoption Services, being the location where records of this nature would normally be held.

TUSLA subsequently contacted this Office and confirmed that following searches carried out by the Adoption Services, a number of records had been located and released to the applicant. In its letter to the applicant dated 18 March 2021, TUSLA released some records to him in full, released a number of records with redactions and refused access to other records. TUSLA refused access to those records under sections 37(1) and 37(7) of FOI Act, which is concerned with the protection of personal information relating to third parties. 

The review before this Office relates to TUSLA-�s decision to refuse access to the records sought under section 15(1)(a) of the Act on the basis that no relevant records could be found. TUSLA has acknowledged that it had not undertaken all reasonable searches when it made its decision to refuse the applicant-�s request. Accordingly, I find that TUSLA was not justified in refusing the applicant-�s request under section 15(1)(a) of the Act.

While TUSLA subsequently part-granted access to records it located during the course of this review, I do not consider it appropriate for this Office to review TULSA-�s decision before TUSLA completes its statutory role, under section 21 of the Act of offering the applicant an opportunity to seek an internal review of its decision on access to those records.

In the circumstances, I consider that the appropriate course of action to take is to annul TUSLA-�s decision to refuse the applicant-�s request under section 15(1)(a) of the Act, the effect of which is that the TUSLA must consider the applicant-�s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with TUSLA-�s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the TUSLA to refuse access to the applicant-�s birth, fostering and adoption records under section 15(1)(a) of the FOI Act. I direct TUSLA to conduct a fresh decision-making process in respect of the applicant-�s request.

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