Decision
Mr and Mrs X and TUSLA (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 170324
Published on
From Office of the Information Commissioner (OIC)
Case number: 170324
Published on
Whether TUSLA was justified in deciding to refuse access to parts of the applicants' fostering files on the grounds that the records are exempt from release under sections 31(1)(b) and 37 of the FOI Act
09 February 2018
On 4 July 2016, the applicants made an FOI request to TUSLA for "a copy of all records held on file by TUSLA concerning us from 1 January 2015 to 4 July 2016 inclusive". TUSLA did not issue a decision within the statutory time-frame. On 6 January 2017, TUSLA granted access to certain information and refused access to the remaining records under sections 31(1)(a) (legal professional privilege) and 37 (personal information) of the FOI Act. On 22 February 2017, the applicants applied for an internal review of that decision. TUSLA issued its internal review decision on 13 April 2017. It varied its original decision, releasing additional records and refusing access to the remaining records under sections 31(1)(b) (contempt of court) and 37 of the FOI Act. On 26 June 2017 the applicants applied to this Office for a review of TUSLA's decision.
In conducting my review, I have had regard to the correspondence between the applicant and TUSLA as outlined above and to the correspondence between this Office and both parties, as well as to the contents of the withheld records that were provided to this Office by TUSLA for the purposes of this review.
This review is concerned with whether TUSLA was justified in refusing access to certain information under sections 31 and 37 of the FOI Act. I will refer to the redacted parts of the partially granted records and the withheld records collectively as "the records". I have adopted the numbering used by TUSLA in its schedules of records. During the review, the applicants confirmed to this Office that they do not seek access to certain records relating to their own children. Those records therefore fall outside the scope of this review.
Before considering the exemptions claimed, I wish to make the following points. First, the redactions in the records which TUSLA provided to this Office were very unclear. This meant that it was not possible to ascertain which information had been withheld without seeking clarification from TUSLA. Moreover, TUSLA replied to this Office's queries almost two months after they were sent, citing a high volume of FOI requests as a reason for the delay. It can also be seen from the chronology of events above that TUSLA took a number of months to issue a decision to the applicants and failed to adhere to the statutory time-frames. As this Office has previously stated, it is incumbent on FOI bodies to put the resources in place in order to be able to deal with FOI requests and reviews appropriately, especially where a high volume of FOI requests is received.
Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on TUSLA to satisfy me that its decision is justified.
Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Fourthly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicants' reasons insofar as they might be construed as a public interest argument.
Finally, with certain limited exceptions (e.g. sections 37(2) and 37(8), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Having reviewed the records, I believe that it is appropriate to consider section 37 of the FOI Act first.
Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include “(i) information relating to the educational, medical, psychiatric or psychological history of the individual” and “(xiv) the views or opinions of another person about the individual”.
Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.
The records relate to: children who are or were in the foster care of the applicants; parents of children in foster care; family members of children in foster care; and other third parties. They include information relating to the educational and medical history of individuals other than the applicant, in addition to views or opinions about individuals other than the applicants. The majority of the records consists of information which relates to third parties. Accordingly, their release would involve disclosing personal information relating to individuals other than the applicants.
In theory, one could extract certain words or phrases from these records which relate solely to the applicants. However, those words and phrases appear in the context of other information which relates to the care and welfare of children in foster care and to other third parties. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. I therefore find that the records are exempt from release under section 37(1) of the FOI Act. These findings are subject to the provisions of sections 37(2) and 37(5), which I examine below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of these circumstances apply to the records. That is to say, (a) the information does not relate solely to the applicants; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I am then required to consider section 37(5) as it applies to the remaining records.
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.
In relation to the issue of the public interest, it is 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 public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights 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.
During the review, the applicants said that they seek access to minutes or documents related to meetings about them. They specify certain dates and a time period in this respect. They said that they firmly believe that their good names and characters were destroyed at these meetings and they are very concerned about the content in these files. Having reviewed the records, I can see that some of them relate to meetings and events in or around the dates and time period referred to. I can also see that some of the information from those time periods has been released to the applicants. However, the fact remains that the information which the withheld records contain relates principally to the histories of children in foster care and to their welfare, as well as to family members of such children. I consider this to be highly sensitive information, which is extremely personal to the third parties concerned.
As noted above, I am required to disregard the applicants' reasons for their FOI request. Therefore I can only take into account the purpose for which they seek this information to the extent that they identify a public interest. In this case, I accept that there is a public interest in openness and accountability in relation to the manner in which TUSLA administers the fostering system, including how it deals with the concerns of families. However, I find that this public interest has been met to some extent by the release of the records which contain the personal information of the applicants. I believe that the interest which the applicants set out in their submissions is more properly viewed as a private rather than a public interest. It would not be appropriate for me to direct the release of any third party personal information on the basis of any private interests that the applicants may have in the release of the records. I consider that a significant invasion of privacy would occur if the records were disclosed to the world at large, which is the effective result of releasing records under FOI. I therefore find that section 37(5)(a) does not apply in the circumstances.
It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.
Regulations have been made by the Minister in relation to FOI requests where the requester is the parent or guardian of a child to whom the record relates. It has not been argued that the applicants are the legal guardians of the third parties and I have no reason to believe that this is the case.
Having regard to the above, I find that TUSLA is justified in refusing access to the records, under section 37(1) of the FOI Act.
Section 31(1)(b) requires that records be withheld where it is known, or ought reasonably to be known, that their disclosure would constitute contempt of court. My finding under section 37 above covers all the records under review. Accordingly, I am not required to consider the exemption claimed under section 31 of the FOI Act. Nonetheless, I note that Records 1-22, 70-83, 204-209, 224, 226-229, 232-235 and 267-272 (File 1) are stated on their face to have been prepared in the context of court proceedings about care orders. Court childcare proceedings are held in camera and it is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority. I consider that any record that was created for such proceedings is required to be withheld under the mandatory 31(1)(b) of the FOI Act. I therefore find that the above-numbered records, as well as being exempt under section 37 of the FOI Act, are exempt under section 31(1)(b).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA's decision, under sections 31(1)(b) and 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.
Elizabeth Dolan
Senior Investigator