Decision
Ms. Z and Tulsa
From Office of the Information Commissioner (OIC)
Case number: OIC-161036-N9Q0Z5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-161036-N9Q0Z5
Published on
Whether Tusla was justified in refusing access, under section 42(m) of the FOI Act, to the identity of the person(s) who had submitted reports concerning the applicant
9 December 2025
On 26 May 2025, the applicant requested the identity of the person(s) who submitted allegations concerning the applicant and her family.
In a decision dated 25 June 2025 Tusla refused the applicant’s request under section 42(m)(i) of the FOI Act, which protects the identity of a person who has provided information to an FOI body in confidence in relation to the enforcement or administration of the law. On 27 June 2025, the applicant requested an internal review of Tusla’s decision. She said the reports were entirely false and submitted with malicious intent. The applicant also said she has since identified the source of the false reports and had reported her to the Gardaí. She argued the person’s actions were not only malicious but potentially criminal. She said withholding the identify of this individual is not in the public interest and hinders her access to justice and the safety of her children. She argued that providing her with the identity was in the public interest as it would expose and deter false reporting to child protection services. On 18 July 2025, Tusla affirmed its original decision. On 27 July 2025, the applicant applied to this Office for a review of Tusla’s decision. She claimed there are compelling legal and public interest grounds for disclosure. On 26 Auguust 2025, the applicant made further submissions to this Office in support of her application for review.
The Investigating Officer assigned to this case invited Tusla to make submissions in support of its decision, which it duly did. In its submissions Tusla said it also considers that section 37 of the Act would apply to protect personal information of third parties. The Investigating Officer provided the applicant with details of Tusla’s submissions and invited her to make further submissions of her own, which she duly did.
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, including the submissions made to this Office. I have also had regard to the contents of the records in question. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether Tusla was justified in refusing access to the identity of the person(s) who submitted allegations concerning the applicant and her family, under section 42(m)(i) and section 37 of the Act.
Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Tusla initially refused the applicant’s request under section 42(m) of the Act. As noted above, it also made submissions to this Office that the information sought is exempt under section 37 of the Act. As section 42 restricts the applicability of the FOI Act in certain circumstances, I will consider the applicability of section 42(m) first.
Section 42(m) 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 –
i. 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, or
ii. any other source of such information provided in confidence to an FOI body, or where such information is otherwise in its possession.
In essence, section 42(m)(i) 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. The section is not subject to a public interest test. In other words, if the section applies, then that is the end of the matter and no right of access exists under the FOI Act to the information sought.
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 information. The second is that the information supplied must have been given in confidence, while the third is that the information supplied must relate to the enforcement or administration of the law.
The records at issue are reports made to Tusla about child protection concerns. In its submissions to this Office, Tusla said that disclosure of the information contained in the record would identify the individual(s) who made the reports. As the information sought is the identity of the person(s) who made the reports, I am satisfied that the release of that information would reveal the identity of the person(s) who made the report to Tusla. Accordingly, I am satisfied that the first condition is met.
The second requirement for section 42(m)(i) to apply is that the information must have been provided in confidence. In its submissions, Tusla said the referrals in question are provided to it from concerned individuals on the understanding that they will be treated as confidential. Tusla said it would not reveal the identity of the referrer as the disclosure could potentially prejudice the giving of such important flow of information from the same or other persons with regard to the reporting of concerns relating to the protection of children. It said it is imperative under the childcare legislation of the safeguarding of this kind of information and continued reporting is provided to the Agency to ensure that Tusla are informed and can proceed under the provisions of the legislation to determine family circumstances and implement the appropriate measures to assist families and protect children at risk.
The applicant argued that the complaints made in this case formed part of an ongoing campaign of harassment of her and her family. In essence, she suggested that the complaints were made in bad faith. She said section 42 was designed to protect individuals providing information in good faith and should not shield those who act maliciously. She said confidentiality cannot and should not extend to persons who deliberately misuse Tusla’s reporting mechanisms to harass or defame others. The applicant argued that even if section 42 technically applies, she maintains that the public interest in disclosure outweighs the interest in protecting confidentiality in this case. She said false reporting wastes Tusla’s valuable time and resources, diverting attention from families in genuine need. Furthermore, she said malicious reporting also creates a “cry wolf ” effect, where repeated false allegations risk causing professionals to discount future concerns, thereby endangering children who may need urgent intervention. She argued that protecting malicious reporters only perpetuates this risk and undermines Tusla’s mission to protect children.
This Office takes the view that the purpose of section 42(m)(i) is to protect the flow of
information from the public which FOI bodies require to carry out their functions relating to the enforcement or administration of the law. Thus, section 42(m)(i) may apply where information was given in confidence, but is subsequently found to be mistaken or unfounded. Moreover, while it may be argued that an untruthful or maliciously made complaint cannot be regarded as information provided in confidence, we give significant weight to safeguarding the flow of information to FOI bodies. We accept that bodies such as Tusla act upon every report such as the type at issue in this case in good faith and that the disclosure of the identity of complainants – even where the applicant suggests that the complaints were maliciously motivated, or where it was subsequently found to be without foundation – could reasonably be expected to prejudice the flow of information, which bodies such as Tusla rely upon to carry out their functions.
Having regard to Tusla’s submissions, I accept that the information was given in confidence in this case, and I find that the second requirement has been met.
The third requirement is that the information provided relates to the enforcement or administration of the law. Tusla said it operates under the Child and Agency Act 2013 and the Child Care Act 1991 and the core of the legislation is the Agency’s function to promote the development, welfare and protection of children. It said the information provided relates to the enforcement or administration of the law insofar as it pertains to Tusla’s responsibility in respect of child welfare and protection services. In light of this, I am satisfied that the third requirement is met in this case.
In conclusion, therefore, having found that each of the three requirements are met, I find that Tusla was justified in refusing access to the identity of the person(s) who submitted concerns to it under section 42(m)(i) of the FOI Act. As noted above, section 42(m) is not subject to a public interest test. Having found section 42(m)(i) to apply, it is not necessary for me to consider whether section 37 of the Act also applies to the information sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision to refuse the identity of the person(s) who submitted allegations concerning the applicant and her family under section 42(m)(i) of the Act.
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.
____________________
Richard Crowley
Investigator