Decision
Mr X and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-150970-C4G1Y5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150970-C4G1Y5
Published on
Whether Tusla was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to the number of referrals made to it by members of sporting Ireland bodies on the ground that it does not hold a record containing the information sought and that it is not required to create a record containing that information pursuant to section 17(4) of the Act
30 May 2025
On 5 March 2024, the applicant submitted the following FOI request to Tusla: “I would like to know how many cases involving children are referred to tusla by members of sporting Ireland bodies per year, and of that amount how many of those are considered serious enough for Tusla to need to intervene and examine the situation formally in more detail.”
On 12 April 2024, Tusla refused the applicant’s request under section 15(1)(a) of the FOI Act. Tusla said the records could not be provided to the applicant due to the fact that his request is very specific, and it does not hold that level of detail. Tusla said that, while information regarding the type of reporter is captured on individual case files, it is not possible to extract this data electronically and it would not be feasible to extract efficiently from individual case files. Tusla said that ‘members of sporting Ireland bodies’ is not a classification which is used within the Tusla Case Management electronic system (TCM). Tusla directed the applicant to information it publishes on its website which includes the source of mandated reports for Child Protection & Welfare concerns.
On 18 April 2024, the applicant requested an internal review of Tusla’s decision. In his appeal, he stated that he did not accept Tusla’s argument that it did not hold the level of detail he requested, and he pointed to the fact that Tusla had stated in its original decision that, while some of the information he requested may be held on individual case files, it would not be possible to extract this information efficiently. He argued that Tusla’s reason for refusing his request i.e. not holding the level of detail requested, was incorrect.
On 26 April 2024, Tusla affirmed its original decision under section 15(1)(a) and said that information regarding the referrer and the referring organisation is noted on individual case records but that it is not possible to extract this data electronically. It said, extracting the information would require a full review of all individual referral records on all referrals received by Tusla. In light of the number of referrals received by Tusla each year, as well as the required time to retrieve and individually examine such a number of records, the decision maker stated he was also refusing the applicant’s request under section 15(1)(c) of the FOI Act.
On 1 August 2024, the applicant applied to this Office for a review of Tusla’s decision. He argued the data he requested is available in the records held by Tusla, and as such, he did not believe a refusal under section 15(1)(a) was appropriate. He also contested Tusla’s reliance on section 15(1)(c) at internal review stage.
During the course of this review, the Investigating Officer provided the applicant with details of Tusla’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no records existed, nor could the information be reasonably extracted from its systems. Tusla said it no longer wished to rely on section 15(1)(c) as it is not required to manually extract the information sought. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did. Upon receiving submissions from the applicant, the Investigating Officer reverted to Tusla with additional queries, which Tusla addressed in further submissions to this Office.
Accordingly, 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 Tusla and the applicant during the course of this review. 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 the applicant’s request under section 15(1)(a) of the FOI Act on the ground that it does not hold a record containing the information sought and that it is not required to create a record containing that information pursuant to section 17(4) of the Act.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In considering whether Tusla holds relevant records in this case, I have also had regard to section 17(4) of the FOI Act. That section provides that where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. If the reasonable steps result in the creation of a new record, that record shall, for the purposes of considering whether or not such new record should be disclosed in response to the request, be deemed to have been created on the date of receipt of the FOI request.
As noted above, Tusla provided this Office with details of the searches that it undertook to locate relevant records, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.
Tusla submissions
By way of background, Tusla stated that it collects and publishes 254 datasets relevant to its Child Protection and Welfare services, and this data is available on its website under the ‘Tusla Performance and Activity Reporting Site’. Tusla stated that the initiative to make this information available seeks to promote innovation, research, analysis and transparency through the publication of Public Sector data in open, free and reusable formats in line with the goals of the Open Data Strategy.
In relation to the applicant’s request, Tusla stated that it identified that information falling within the scope of the applicant’s request is not routinely collected as part of Tusla’s performance data and, in the circumstances, it was necessary to carry out additional searches to establish if any relevant records were held elsewhere. Tusla stated that record search enquiries were initiated in a number of Tusla departments. Tusla said that searches were carried out in its Quality & Regulation Directorate, its electronic database where information of a similar nature is storied (Tusla Case Management System), individual staff computers, the National Service & Integration Directorate, and the Office of the Chief Social Worker. However, Tusla stated that no records falling within the scope of the applicant’s request were identified during these searches.
Additionally, Tusla stated that, in view of the requirement, set out under section 17(4) of the FOI Act, to determine if records could be created by electronic means, contact was made with the General Manager with assigned responsibility and oversight of Tusla’s electronic Case Management System. Tusla stated that this manager advised that, as reporters on the system were not classified, information therefore could not be extracted on the basis of individuals identifying as ‘members of sporting Ireland bodies’. As such, Tusla stated that the decision was made to refuse that applicant’s request under section 15(1)(a) of the FOI Act.
In relation to its internal review decision, Tusla stated that the Internal Reviewer upheld the original decision on the basis of section 15(1)(a) of the Act, but also included a further administrative basis for refusal under section 15(1)(c) of the Act. Tusla stated the reason for the inclusion of this provision was due to the fact that individual case files may contain information relating to a specific child. However, to extract information of this nature would involve a substantial manual review of all case files to identify if and where information of the nature requested was captured and would then involve the creation of a new record to capture such occurrences. Tusla stated that it was aware that the creation of a new record is not generally required in response to an FOI request, unless such a record can be created by electronic means, having regard to section 17(4) of the FOI Act. Tusla also acknowledged that section 15(1)(c) of the FOI Act requires the requester to be offered assistance prior to a refusal under said provision. Tusla stated that in January 2024 alone there were 7,592 Child Protection & Welfare concerns received. It stated that, having regard to the points outlined above, its position was that the most appropriate administrative reason for refusal of this request was section 15(1)(a) of the Act, and that section 15(1)(c) was incorrectly applied.
Applicant’s submissions
In his submissions, the applicant noted that Tusla is refusing his request under section 15(1)(a) of the Act, which relates to instances where no records exist. He said Tusla had contradicted its position by stating it may hold information relating to his request within certain case files. The applicant argued that if the information exists, then section 15(1)(a) of the Act cannot apply.
Additionally, the applicant queried the search terms used by Tusla and asked whether Tusla had only conducted searches using the key words ‘members of Sporting Ireland bodies’, or whether it had conducted searches for records using the names of each Sporting Ireland body. The applicant provided some examples. The applicant stated that by using the term ‘members of sporting Ireland bodies’, he had intended for Tusla to search for records by querying its systems for any and all bodies which fall under the auspices of Sport Ireland. The applicant provided a list of said bodies, which he highlighted was available online.
Furthermore, the applicant queried whether, hypothetically, an instance could occur whereby a child safety officer from a sporting body contacted Tusla to report an incident, and Tusla does not make a record of it in its National Incident Management (NIM) system which states that the reporter was from the body in question. The applicant said he found this difficult to believe, as it would mean that Tusla has no means of identifying whether there are systemic incidents coming from any particular sporting area. Furthermore, the applicant stated that he had researched how Tusla are supposed to record incidents and based on his research it appeared that Tusla must enter reports into its NIM system, which is managed by the states claims agency. The applicant also included a video link, which outlined the information Tusla inputs into its NIM system. The applicant pointed out that in this video, it states Tusla staff must fill in a witness section, which he argued that Tusla would surely include the name of the sporting body reporting the incident in this section. In light of this, the applicant stated that he believed it should be very simple to search the system for sporting Ireland bodies to see if the name of the organisation appears anywhere in the witness details or other fields included in a NIMs report.
The Investigating Officer reverted back to Tusla and asked for a response to the queries raised by the applicant. In response, Tusla said that Tusla’s Case Management Child Protection and Welfare and Alternative Care system is principally a child centred system, which records relevant information of each child who is referred to Tusla. Tusla stated that, for this purpose, information is built around the individual child’s record which may, but not always, reference organisation or club names. It said that, on this basis, the recording of information of the type requested is not systematically listed in its system. Furthermore, Tusla said that the example of sporting bodies provided by the applicant in his submissions to this Office are not specific categories of referrer. Tusla also said it does not use the term ‘witness’ on its system. Tusla said that its system can be searched using the name of a specific organisation, and if found, details regarding referral/reporter associated with that particular organisation can be viewed. It stated that, while sporting bodies are not captured as specific categories on the Tusla Case Management Child Protection & Welfare and Alternative Care (TCM CPAC) systems, some sporting bodies who made individual referrals may be contained within TCM CPAC individual case records. Consequently, Tusla stated that the only way of identifying where a sporting body has been listed on a referral would be to review each individual referral to establish if this person, club, or organisation reported an incident of abuse by another person, reported an incident of abuse in their club or organisation, or where the person attached to this sporting body is a person against whom an allegation is made.
In light of this, Tusla said that to answer to the applicant’s request would involve the manual review of each referral where an individual body is referenced, to establish if it contains information relevant to what has been requested. Tusla stated that the FOI Act stipulates under section 17(4) that an FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. Tusla said that for it to undertake the search process outlined above would, in its opinion, significantly exceed any such search requirement.
Additionally, Tusla stated that whilst it holds some relevant information in its ICT system, it would cause unreasonable interruption to gather the information requested due to the need to manually identify any relevant records. Furthermore, Tusla stated that it does not produce reports on information regarding sporting bodies, and its system is used solely for the purpose of addressing children’s individual or collective needs. As such, Tusla reiterated that it was not possible to electronically extract the relevant information to fulfil the applicant’s request.
My analysis
Essentially, this case hinges on whether Tusla can electronically extract the information sought by the applicant. I am satisfied from the submissions in this case that it cannot.
It is important to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. Apart from the provision under section 17(4) about extracting information from electronic records, the Act does not require FOI bodies to create records in order to grant a request.
The essential purpose of section 17(4) of the Act is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on the fact that the extracted output would comprise a new record. Nevertheless, for the section to apply, the information sought must be contained within a number of electronically held records and the body must be in a position to search for and extract the records by taking reasonable steps, those steps being steps that involve the use of a pre-existing electronic search or extraction facility that was used ordinarily by the FOI body. Where the search and extraction needed to collate or extract information requires an FOI body to go beyond reasonable steps, section 15(1)(a) can be relied upon to refuse a request i.e. that no relevant record exists having taken all reasonable steps to locate it.
As noted above, Tusla does not classify the information sought by the applicant relating to referrals in a manner that would allow it to extract it from its case management systems. Tusla said the only way of identifying where a sporting body has been listed on a referral would be to review each individual referral to establish if this person, club, or organisation reported an incident of abuse by another person, reported an incident of abuse in their club or organisation, or where the person attached to this sporting body is a person against whom an allegation is made. It seems to me that while the information sought by the applicant may exist on individual case files, the information is filed in various formats which do not facilitate the use of an electronic search or extraction facility that was used ordinarily by Tusla. Accordingly, I am satisfied from the submissions in this case that Tusla does not hold a record containing the information sought by the applicant and that it was not required to create a record containing the information pursuant to section 17(4) of the Act. In such circumstances, I am satisfied that Tusla was justified in refusing the applicant’s request relating to the number of referrals made to it by members of sporting Ireland bodies on the ground that it does not hold a record containing the information sought and that it is not required to create a record containing that information pursuant to section 17(4) of the Act.
In summary, I find Tusla was justified in refusing the applicant’s request under section 15(1)(a) of the Act on the ground that a record containing the information sought does not exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision to refuse the applicant’s request under section 15(1)(a) 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