Decision
Ms K and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-143086-K8F9G3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143086-K8F9G3
Published on
Whether Tusla was justified in refusing access to information in a peer review report related to the applicant’s children.
17 April 2024
This case has its background in a peer review report which was carried out by Tusla in March 2023 in respect of the applicant’s two daughters and their care arrangements.
In April 2023, the applicant sought a copy of this report to be provided to her. The applicant followed up on 7 June 2023 as the FOI body had failed to issue a decision within the statutory timeframe set out in the FOI Act. On 5 July 2023, the applicant was informed by Tusla that the report had not been finalised yet and accordingly Tusla had determined that the report did not exist. Tulsa stated that it would put the request on hold until the report was signed off. On 22 August 2023, the applicant sought an internal review of Tusla’s decision, she stated that she had been informed by Tusla that the report had been finalised on 18 July 2023, and that she had followed up since but received no response. On 12 September 2023, Tusla issued its internal review decision. In the decision, Tusla stated that it had offered the applicant an opportunity to meet with a member of the social work team about the report to address the specific concerns raised but that the applicant had failed to respond. In relation to the report, Tusla granted partial access with various exemptions applied. It stated that information was withheld on the basis that it was exempt under sections 37(1), 37(7), 37(8)(a), 31(1)(a) and 31(1)(b). On 13 October 2023, the applicant applied to this Office for a review of Tusla’s decision to withhold information across the report.
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 who made submissions. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether Tusla was justified in refusing access to information contained in the Peer Review report under sections 37(1), 37(7), 37(8), 31(1)(a) and 31(1)(b).
As outlined above, Tusla failed to issue an original decision. In the circumstances, it is important for me to emphasise to Tusla that its obligation to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. Tusla should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.
Before I consider the substantive issues arising in this case, I would like to make the following preliminary comments. Firstly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the record at issue and the material that I can refer to in the analysis is limited.
Secondly, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Section 37 – Personal Information
37(1) and 37(7)
Tusla has relied on section 37(1) in conjunction with section 37(7), to refuse access to certain information across the report. The following information was refused under section 37(1) of the FOI Act:
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the Act defines "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 that body as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to; (i) information relating to the educational, medical, psychiatric or psychological affairs of the individual (ii) information relating to the financial affairs of the individual; (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.
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 while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies. It is also important to note that the fact the applicant may be aware of the identity of the other parties does not mean that the information cannot be protected under section 37(1).
Tusla have stated that it is the public bodies view that when a person enters a relationship with a public service such as Tusla they are entitled to expect that information generated in that relationship is treated in confidence and remains private. It states that this is critically important in the subject matters which Tusla is involved in. It states that the records contain information relating to third parties which clearly falls within the definition of personal information. It states that it concluded that the information in question was personal information as it related to third parties who are not the requester. It states that the key definition of “personal data” being “any information relating to an identified or identifiable natural person.” It also noted that information relating to an employee’s annual leave had been removed, and that a separate professional who had been assigned by the courts had also had their personal information redacted.
As Tusla has relied on section 37(1) of the Act in refusing access to information in relation to identifiable individuals in their capacities as a staff member of an FOI Body, section 2(l) of the FOI Act is relevant. This paragraph excludes certain matters form the definition of “personal information”, including the names of staff members of an FOI body or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions.
The exclusion at section 2(I) does not provide for the exclusion of all information relating to staff members of FOI bodies. The exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The exclusion does not deprive public servants of the right to privacy generally, in particular I would note that leave arrangements do not relate to a public servant’s functions as a staff member of an FOI body. Accordingly, I consider this information to be personal information for the purposes of section 37(1) of the Act.
The record in question also contains information which relates to the applicant and her children and other third party individuals. Mindful of the provision of section 25(3), I cannot provide a detailed description of the information in the record. However, I can say generally that it comprises details of various parties engagements with social workers in respect of the applicant’s children. For the most part, Tusla have released all information relating to the applicant and her children, notwithstanding one redaction made under section 37(8), which will be dealt with separately.
Having examined the withheld information under section 37(1), I am satisfied that it comprises either personal information relating solely to individuals other than the applicant and/or her minor children. I am satisfied that the release of any additional information would involve disclosure of personal information relating to individuals other than the applicant and/or her minor children and that section 37(1) applies.
In its submissions, Tusla stated that the material it had withheld under section 37(7) related to family members of the applicant’s minor children and other third parties. This included information relating to third party engagements with Tusla in respect of the minors. Therefore, according to Tusla, the release of this information would involve disclosing personal information relating to individuals other than the applicant and the minors. I have examined the material that Tusla has withheld under section 37(7) and given the nature of the record in question, I am satisfied that the applicant’s personal information and the personal information of her children is inextricably linked to the personal information of the other identifiable third parties (joint personal information). On that basis, I consider that information to be exempt under section 37(7) of the Act.
In relation to the information in the records that I have identified above as either personal to individuals other than the applicant, or as joint personal information, the matter does not end there as 37(1) is subject to the other provisions of section 37, while section 37(7) is subject to section 37(2)(b) to (e), section 37(5) and 37(8). Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
Section 37(5) provides that a request that would fall to be refused under section 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 to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the FOI Act does not apply.
In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. 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, which provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. 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.
In relation to the issue of the public interest, it is also 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 true public interest should be distinguished from a private interest.
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. 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.
In the submissions provided, Tusla did not outline what factors it had considered in respect of the public interest test other than it did not consider that the arguments for release of personal information in the public interest outweigh the significant public interest in protecting the right to privacy of any of the individuals to whom the records related. It states that it also considered that it was not deemed that the individuals concerned would benefit from the release of the information in question. Although Tusla did not provide details of the public interest it considered for and against release of the information in question, I believe it is open to me to outline some of the factors considered generally, when weighing up the public interest factors in considering the release of personal information. It is well established that there is a public interest in public bodies being open, transparent and accountable, there is also a public interest in in individuals knowing that information held about them by public bodies is accurate, and there is a further public interest in the exercising rights of access under the FOI Act. It is also relevant to note that privacy rights afforded to individuals under the FOI Act 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 the circumstances of this case, I consider that revealing to the world at large the details withheld under this section would result in a significant breach in those individuals right to privacy.
The information that I have identified in the records as falling within the scope of sections 37(1) and 37(7) is of an inherently private nature. I am also of the view that the public interest in openness and transparency in relation to how Tusla carries out its functions in reviewing care arrangements for children would not be served by the release of the information at issue here, which relates to third parties and not to how Tusla carries out it functions. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) and the 2016 regulations
Section 37(8)(a) provides that notwithstanding subsection (1), the Minister for Public Expenditureand Reform (the Minister) may provide for regulations for the grant of an FOI request where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The relevant regulations are the Freedom of Information Act 2014 (section 37(8)) Regulations 2016 (the Regulations).
Among other things, the 2016 Regulations provide that, notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a minor and shall, subject to the other provisions of the FOI Act 2014, be granted, where the requester is a parent or guardian of the individual to whom the record concerned relates and that individual has not, on the date of the request, attained full age. Both of the applicant’s minor children fall into this category.
Regulation 6 of the 2016 regulations provides that the above – mentioned right of access shall apply where, in the opinion of the FOI body, access to the record would, having regard to all the circumstances, be in the individuals best interests. In order to address the question of whether release of the information at issue in this case would be in the best interests of the minor child, I have had regard to the guidance published by the Minister for Public Expenditure and Reform in relation to access to records by parents under section 37(8) (i.e. Central Policy Unit Notice 25, available on [external-link https://www.foi.gov.ie/ | www.foi.gov.ie ).
Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidance when performing their functions under the FOI Act. In particular, section 2.1(B) of the Minister's guidance lists the following as factors to be considered:
The guidance also suggests that, where appropriate, there should be a consultation with the minor concerned to establish his or her views on the release of his or her personal information to a parent. In the particular circumstances of this case, I do not consider it appropriate for this Office to consult with either child.
Tusla redacted one line on page 10 of the record under section 37(8) and released all other information relating to them to the applicant, their mother. In support of its position, in respect of this particular information Tusla states that consideration was given to whether release of some of the file would be in the best interests of the children, it states that consultations were undertaken with the social work team allocated to the applicant, it states that it considered other ways of engaging with the requester on the matter and that it does not consider FOI to be the best mechanism in this regard. It provided additional detail in respect of why the redaction was made under this section, in respect of that specific detail section 25(3) refers, however Tusla have stated that it considers that the release of the information in question could potentially damage the relationship between the minors and their mother, including impacting on future initiatives to repair this relationship. It notes that in addition, it was felt that disclosure of was likely to have a negative effect on the confidence of the minors, or other minors in similar circumstances, in making confidential disclosures to relevant persons without fear of negative outcomes. In making its submissions, Tusla also states that the child welfare and protection policy within Tusla is based on legal framework provided by the Child Care Act 1991, the Children First Act 2015 and the Child and Family Agency Act, 2013 (s.9), it states that these principles acknowledge that the best interests of the child should be paramount in all decision making processes.
Tusla also states that the approach taken is to release as much information as possible, subject to considerations in the best interests of the minor, it states however that this specific piece of information would have a damaging effect for the reasons outlined above and that it did not believe any other information in this file would have the same possible adverse effect on their relationships with the applicant.
In considering whether the best interests of the applicant’s daughters would be served by the release of this information, I have weighed up the available evidence and arguments and note in particular the sensitive nature of the record and this information specifically. I would also add that while the Supreme Court in the case of McK vs the Information Commissioner [2006] IESC 2, held that a parent is entitled to a rebuttable presumption that access to his or her child’s medical information is in the best interests of the child, the contents of the records is a relevant factor. While the applicant is entitled to the presumption that she will act in the best interests of her children, it is my view based on the information in the record (based on the nature of the redacted information) that the provision of this information to the applicant carries the potential to negatively impact the best interests of the children and potentially their relationship with their mother. In particular, given that the release of information under FOI is generally considered to constitute release to the world at large, I consider that the release of the information relating to either minor would result in a significant risk of a breach of both minor’s right to privacy.
Accordingly, I find that the 2016 regulations do not operate in this case to grant a right of access to the applicant to the information withheld in page 10 relating to the applicant’s daughters.
Section 31(1)(b) – Contempt of Court
Tusla relied on section 31(1)(b) to withhold access to references across the record. Section 31(1)(b) provides for the mandatory exemption from release of a record or information in a record of which the FOI Body knows or ought reasonably to have known that its disclosure would constitute contempt of court. It should be noted that it is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The in camera rule applies to proceedings where there is a statutory requirement such proceedings are held in private or otherwise than in public, and applies to certain proceedings including certain family law proceedings and certain proceedings involving minors.
Information on pages 4, 6, 10, 11 and 12 of the record have been withheld. In its submissions on section 31(1)(b), Tusla have stated that certain information in the record identifies that the children have been involved in family law proceedings. It states that in the circumstances, section 31(1)(b) was applied, it considered in this context that it is contempt of court for any person to disseminate information emanating or derived from family law proceedings held in camera without prior judicial authority.
Tusla have redacted any reference to court from the record, in addition to any details emanating from court directions. While it is clear from the record that the applicant was a party to the proceedings in question, the identity of the requestor and their attendance in such proceedings is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).
Having reviewed those parts of the record which have been refused on the basis of section 31(1)(b), I am satisfied that they relate to court proceedings held in camera. I am not aware of any judicial authority regarding the disclosure of the records concerned. I accept that disclosure under the FOI Act would amount to a contempt of court. Accordingly, I find that section 31(1)(b) applies to the parts of records, referred to above.
Section 31(1)(a) – Legal Professional Privilege
Tusla refused access to an extract on page 11 of the report, and the appendix to the report on the basis that both contained a summation of legal advice from a solicitor within Tusla’s Office of Legal Services. It contends on this basis that the record attracts legal professional privilege and is exempt under section 31(1)(a).
Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
Confidential communications made between the client and his/her 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 or the professional legal adviser and third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The concept of “once privileged always privileged” applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
In the submissions provided to the Office, Tusla have stated that the advice in question was given from Tusla’s Office of Legal Services to the Principal Social Worker in an anonymised email, and the advice related to court proceedings. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Tusla have also clarified that both pieces of legal advice are linked, and that it is considered that they are confidential on the basis that it relates to Tusla’s role in communicating with the courts.
Having examined the information withheld under this section, I am satisfied that the record contains a summation of legal advice from an in house legal advisor, in the context of the above referenced proceedings. It is clear to me it was created for the purpose of obtaining legal advice and also contains the advice given in summary form. On that basis, I am satisfied that Tusla was justified in refusing access to those parts of the record under section 31(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision. I find that Tusla was justified in refusing access under sections 37(1), 37(7), 37(8), 31(1)(b) and 31(1)(a) to certain information in the Peer Review Report.
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.
Rachael Lord, Investigator