Decision
Ms H and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-125671-N6Z0P9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-125671-N6Z0P9
Published on
Whether Tusla was justified in refusing access under sections 37(1) and 37(7) to all files concerning child welfare matters in respect of the applicant between 2001 – 2006.
23 November 2022
In a request dated 2 March 2022, the applicant sought access to all records held by Tusla concerning child protection and child welfare matters in respect of the applicant between 2001 – 2006. In a decision dated 10 May 2022, Tusla partially granted access to the records concerned. In its decision, it set out that it had refused access to certain information under sections 37(1) and 37(7), on the basis that the records in question disclosed the personal information of individuals other than the requester. It concluded that on consideration of the public interest, the right of privacy of members of the public overrides the factors in favour of release.
The applicant submitted a request for internal review on 17 May 2022. The request set out that the applicant was dissatisfied with the manner in which redactions had been applied, she argued that the redaction of her personal data was not justifiable or proportionate. She further expressed her concern that the decision maker assigned to her case was the team leader throughout the FOI file request, from 2004 – 2006. She stated her belief that this was a significant conflict of interest. Finally, she highlighted that she had evidence from a previous FOI request which had been submitted to Tipperary, that correspondence took place between the two social work departments in 2003 pertaining to significant risk, and that there was no evidence of this communication in the Galway file.
On 21 June 2022, Tusla issued its internal review decision. It stated that all records held between 2004 and 2006, were part of the review and all records within scope of the original request were made available. It upheld the original decision and stated that if the information requested was released in full it could seriously prejudice the giving of that type of information to Tusla in future.
On 28 June 2022, the applicant applied to this Office for a review of Tusla’s decision. In her application the applicant re-iterated the arguments made in her internal review.
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 applicant, the applicant’s comments in her application for review and to the submissions made by the FOI body in support of its decision. 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 solely with whether Tusla was justified in refusing access, under section 37(1) and 37(7) of the FOI Act, to information contained in the partially released records on the basis that the information concerned is the personal information of others.
Moreover, in relation to the additional records that the applicant argued ought to exist, I consider Tusla’s position to amount to an administrative refusal of any further relevant records under section 15(1)(a), and examine this aspect of the applicant’s case below under this provision of the Act.
Section 37(1) and 37(7)
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. The section does not apply where the information involved relates solely to the requester (subsection (2)(a) refers). 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).
As outlined above, Tusla refused and redacted large portions of the information relating to the applicant on the basis that the records in question also contained information relating to third party individuals. In its submission, it stated that while it considers that the redactions applied in this case were in line with FOI legislation, it accepts that excessive restrictions were applied in relation to section 37 and that additional information could possibly be considered for release. Tusla identified four examples of where additional information could be considered for release, and further indicated that it would be prepared to review records regarding its excessive use of section 37.
Following my own review of the file, I have noted inconsistencies in the manner in which exemptions have been applied across the file. On the basis that section 37 does not appear to have been applied in a consistent manner, I consider that the best course of action would be to remit the matter in its entirety to Tusla, to undertake a fresh decision making process.
Section 15(1)(a)
Section 15(1)(a) of the 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 his/her 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. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.
The applicant has provided copies of records received from the Tusla office in Tipperary, which show correspondence and file notes of telephone conversations between Tipperary and Galway in 2003 pertaining to significant risk. No evidence of this communication has been scheduled or provided by the Galway office.
Tusla have provided details of searches carried out as part of its submissions to this office. On the basis that the file is to be remitted to Tusla to undertake a fresh decision making process in respect of the records, I consider that the most appropriate course of action would be for Tusla to provide details of the searches carried out for the records in question, directly to the applicant when issuing its new decision.
Accordingly, I consider that the appropriate course of action is to annul Tusla's decision and to direct it to make a new first instance decision in respect of the applicant’s original request. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with Tusla's decision. I appreciate that remitting the case back to Tusla causes further delay for the applicant. However, I do not believe that there is an alternative appropriate course of action to take in this instance.
Having carried out a review under section 22(2) of the FOI Act, I annul the decision of Tusla and direct it to undertake a fresh decision-making process in respect of the applicant’s request.
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