Whether TUSLA was justified in refusing direct access to social work records relating to the applicant and her son on the basis that section 37(3) of the FOI applied

14 December 2021

Background

In a request dated 20 September 2020, the applicant sought access to all files, reports and records held by TUSLA about herself, her son and her family. On 19 July 2021, having received no decision on her request, the applicant sent a reminder to TUSLA, which TUSLA treated as an application for an internal review of the deemed refusal of the request.

In a decision dated 16 August 2021, TUSLA refused the request pursuant to section 37(3) of the FOI Act, but offered to make the records available to a relevant health professional of the applicant’s choice in accordance with section 37(4).

TUSLA said that it recommended that a health professional with an understanding of the records would support the applicant in accessing her records. It said a qualified social worker would be appropriate in this case. It invited the applicant to choose a social worker if she wished or offered to provide one to assist her.

On 19 August 2021, the applicant sought a review by this Office of TUSLA’s decision. She also provided written authority for her mother to represent her during the review. Accordingly, any references to communications with the applicant in this decision should be taken to include communications with her mother.

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 correspondence outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision. I have also had regard to the contents of the records concerned.

Scope of Review

This review is concerned solely with the question of whether TUSLA was justified in refusing the applicant direct access to her records under section 37(3) of the FOI Act.

Preliminary Matters

While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision in this case are quite limited.

Furthermore, it is important to note that the Act provides that in deciding whether to grant or refuse a request, any reasons that a requester gives for a request shall be disregarded, except in so far as those reasons 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. This means that in this case, I cannot have regard to the applicant's reasons for seeking access to the records at issue.

Analysis and Findings

Section 37(3) of the FOI Act provides that a public body may refuse a request for records of a medical or psychiatric nature relating to the requester or a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester, if it considers that disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition. Where it refuses a request under subsection (3), it must offer access to such health professional having expertise in relation to the subject matter of the records as the requester may specify (subsection (4) refers).

This Office considers that the intention of section 37(4) is to allow an appropriate health professional with relevant expertise to decide how sensitive information should be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). It is important to note that the threshold for meeting the exemption in section 37(3) is quite low as it is sufficient for the body to show that release of the records might give rise to the harm identified, and the harm need be no more than prejudice to the requester’s emotional condition. Nevertheless, this Office considers that where section 37(3) is relied upon to refuse direct access to a record, there must be evidence to support the opinion that there is a real and tangible possibility of harm being caused to the physical or mental health, well-being, or emotional condition of the requester as a result of direct access to the record in question.

The information at issue in this case is held by TUSLA’s social work department and family support services. The records include referrals, assessments and case notes concerning the applicant and her son. TUSLA describe the applicant as a vulnerable person who has an intellectual disability. In its submissions to this Office, TUSLA said that its decision to refuse the applicant direct access to the records was made in consultation with her social worker. The social worker expressed concerns about the applicant receiving her files directly, saying that she may become overwhelmed and upset by the information she is reading. TUSLA explained that the applicant has had the support of an advocate in her dealings with TUSLA in the past. It referred to specific information in the records which, it said, demonstrates that the applicant has found it difficult in the past reading information about herself. TUSLA said it is concerned about the potentially harmful effect on the applicant of reading the records without adequate support.

Based on TUSLA’s submission on the matter and having considered the contents of the records at issue in this case, I am satisfied that it was justified in refusing the applicant direct access to the records under section 37(3). I note that TUSLA has complied with the provisions of section 37(4) by offering the applicant an opportunity to nominate an appropriate health professional to access the records concerned on her behalf. It remains open to her to do so if she wishes to obtain access in that manner.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby affirm the decision of TUSLA to refuse the applicant's request for records about herself and her son under section 37(3) of the 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator