Decision
Ms. X and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-147771-F4N6B2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147771-F4N6B2
Published on
Whether Tusla was justified in refusing access to adoption file records relating to the applicant’s late daughter under section 37 of the FOI Act
17 January 2025
The applicant says she gave birth to her daughter in the 1970’s when she was 18 years old. She says she handed her daughter over to an adoption agency and signed the adoption papers. The applicant says that in 2020, she joined the National Adoption Contact Preference Register in order to let her daughter know that if she was looking for her, she would be happy to meet with her. The applicant says in July 2023, she met with a Tusla social worker and was informed that her daughter was deceased and the adoptive parents were also deceased. She states that she was verbally informed that she had no right to any information from her adopted daughter’s file due to GDPR. The applicant says she appealed this decision and was informed that Part 1 Section 2 of the Birth Information and Tracing Act 2022 does not mention ‘birthmothers’ and this was the reason why Tusla was unable to provide the adoption file. The applicant says on foot of this response, she decided to make an FOI request to Tusla in order to seek access to the adoption file and find out more about her deceased daughter.
In a request dated 22 December 2023, the applicant sought access to information contained in the adoption file including information relating to her deceased daughter such as:
• Full adopted name;
• Baptismal Cert;
• The date my adopted daughter died;
• Cause of death (death cert);
• The place of burial;
• If there are any next-of-kin.
On 22 January 2024, Tusla issued a decision to the applicant in which it refused access to parts of the adoption file under section 37 of the FOI Act. On 15 February 2024, the applicant sought an internal review of Tusla’s decision. She stated that the part of the decision she wishes to appeal concerns information relating to her daughter. She stated that as the birth mother of her late daughter she is the next of kin and is entitled to the records having regard to section 37(8) of the FOI Act 2014 and the 2016 Regulations made under that sub-section. The applicant enclosed an affidavit in support of her contention that she is the birth mother. On 1 March 2024, Tusla affirmed its decision to refuse access to parts of the adoption file. Tusla said it acknowledged receipt of the signed affidavit, it stated that a death certificate was not provided in support of the request and it stated that the applicant’s request does not fall within section 37(8) of the FOI Act. On 23 March 2024, the applicant applied to this Office for a review of Tusla’s decision.
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 Tusla, communications with the applicant, and to the above correspondence between the parties. 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 to information relating to the applicant’s daughter under section 37 of the FOI Act.
Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information, including personal information relating to a deceased individual. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester.
Section 2 of the FOI 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. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (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.
The applicant states that the whole purpose of her actions over recent years was to make it known to her adopted daughter that if she was interested in contacting her, that she was happy to make that contact. She states that to find out that her daughter was deceased was devastating to her. She states that to be told that she could not have access to her details on the file was heart-breaking. She states that an unsuccessful FOI request and an internal review that affirmed the original decision leaves her none the wiser as to when her daughter died, how she died, what life did she have and was she happy. She states that she is being denied access to basic details as a birth mother who wants to find out more about her deceased adopted daughter.
Tusla states that the applicant’s tracing application was allocated to a Social Worker in July 2023 and the tracing process was carried out in line with the Birth Information and Tracing (BIT) Act 2022. Tusla says it endeavoured, under the FOI Act, to provide the applicant with as much information as possible and it released information in relation to the deceased person up to the point of separation of parent and child and when the adopted person was placed with her adoptive parents and an adoption order was granted. It states that once the adoption order was granted, the legal relationship between the parent and child was dissolved and the adoptive parents became the legal parents. Tusla states that consideration was given to the confidentiality of personal information as set out in section 37(1) of the Act and also to the fact that the right to privacy extends to the deceased person. It states that records relating to the deceased person’s identity as an adopted person would identify her adoptive and extended family members whose right to privacy must be respected.
Tusla has released parts of the adoption file to the applicant including correspondence with the applicant, it has released parts of the adoption papers with details of her daughter’s name and the names of the adoptive parents redacted and it has released certain birth information and tracing records again with similar redactions. Tusla has refused access to records including the certificate of baptism, certain birth information and tracing records, the death notice, death registration and details of her adopted daughters extended family. I am satisfied that the redacted and refused records contain the personal information of the applicant’s daughter and the personal information of other identifiable family members including the adoptive parents and members of her daughter’s family. I find that section 37(1) applies to the information at issue. Section 37(1) is subject to the other provisions of section 37, which I examine below.
Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned. That is to say, the information contained in the records does not relate solely to the applicant; the third parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of points to note. First, section 13(4) 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. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, 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.
The applicant says she needs to grieve in an appropriate manner so that she can get on with the remaining years of her life and be somewhat content in the knowledge that she did her best in the circumstances that she was confronted with. She states that in order to achieve this, she needs to find out basic details about her deceased daughter. The applicant states that she is tormented, broken hearted and in receipt of counselling as she is being denied access to basic details as a birth mother who wants to find out more about her deceased adopted daughter.
Tusla states that the BIT Act provides for an adopted person to apply for their birth, early life and care information to Tusla or the Adoption Authority of Ireland. It states however, that the same provision is not afforded to birth parents. It states that birth parents can apply for their own information to Tusla under FOI or GDPR. It states that birth parents can also apply to the Agency to trace their adopted child under the legislation. It states that the BIT Act does not provide for any further tracing if the outcome of the trace is that the adopted person is deceased. In this regard, it states that there is no legal basis for Tusla to further trace extended family members of the adopted person for the purpose of contact or sharing of information on behalf of a birth parent.
While the reasons outlined by the applicant for seeking the records are essentially private interests, it seems to me that these reasons are reflective of a wider public interest in facilitating scrutiny of how Tulsa carries out its functions in relation to the recently enacted Birth Information and Tracing (BIT) Act 2022. On the other hand, 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, therefore, will be set aside only where the public interest served by granting release (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. The information at issue includes tracing records, the death notice and death registration and details of her adopted daughters extended family. This information is of a sensitive and inherently private nature and I must regard its release as effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the withheld information in the records outweighs, on balance, the privacy rights of the individuals. I find, therefore, that section 37(5)(a) does not apply.
Where an FOI body refuses access to records relating to a deceased person under section 37(1) of the Act; it must also consider section 37(8). Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform ("the Minister") may provide by Regulations for the grant of an FOI request in certain circumstances where the individual to whom the information relates is dead. The relevant Regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations).
Article 4 of the Regulations sets out the classes of person to whom records relating to a deceased person may be disclosed. Article 4(1)(b)(iii) provides for release of records of deceased persons "to the spouse or next of kin of the individual... where having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request."
In her application to this Office, the applicant says she recognises that Tusla has to comply with the regulations but she states that there is a human side to this and she is relying on this FOI request to allow her obtain access to basic details as the birth mother and next of kin.
In its submissions to this Office, Tusla says it does not accept that the applicant is the next of kin of the deceased person. Tusla states that section 58 of the Adoption Act 2010 sets out the effect of an adoption order on parental rights and duties. It states that once adoption order was granted in the 1970’s the legal relationship between the parent and child was dissolved and the adoptive parents became the legal parents. It states that in the context of Section 58 of the Adoption Act 2010 the birth parent would not have been informed, or be aware of her child’s adopted identity and personal information such as child’s adopted name and address, adoptive parents’ names, siblings, etc.
Section 58 of the Adoption Act 2010 provides:
"Upon an adoption order being made...
(a) the child concerned shall be considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the adopters born to them in lawful wedlock, and
(b) with respect to the child, the mother or guardian of the child shall...lose all parental rights and be freed from all parental duties."
According to Shannon in Child Law (2nd ed, Round Hall 2011) at 448:
"The making of the adoption order effectively and comprehensively severs the legal nexus between the natural parent and the child, so that the former will retain no rights or duties in respect of the child. ... In effect, therefore, following the adoption of a child by the natural mother, the natural father is no longer a "parent", and therefore any maintenance order previously made ceases to have effect. Nor will the estate of a natural parent (not being an adopter of the child) be deemed liable under the Succession Act 1965 the (Status of Children Act 1987 notwithstanding) for any legacy payable on intestacy."
I am conscious of the shock caused to the applicant after finding out that her daughter was deceased and the distress caused by Tusla’s refusal to release information such as when she died, how she died, place of burial and if there are next of kin. It is however clear from section 58 of the Adoption Act that upon an adoption order being made the child is considered the child of the adopters and the mother loses parental rights. I therefore accept Tusla’s position that the adoption order severed the legal link between the applicant as birth mother and her daughter and the applicant is not the next of kin of her daughter for the purposes of the Regulations. Accordingly, I find that the applicant is not entitled to the records under section 37(8) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision. I find that it was justified in its decision to refuse access to parts of the records under section 37(1) of the FOI 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.
Jim Stokes
Investigator