Decision
Ms H, c/o XYZ & Co. Solicitors and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-135586-R1D6X7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-135586-R1D6X7
Published on
Whether Tusla was justified in refusing access to a social worker’s report concerning the applicant’s daughter
29 May 2023
In a request dated 17 November 2022, the applicant sought access via her legal representatives to a copy of a social work report prepared by Tusla following information received from a school guidance counsellor in respect of the applicant’s daughter. The report was initiated after the daughter reported details of an incident to her guidance counsellor, which had occurred between the applicant and her daughter. The request detailed that the applicant was seeking copies of all documents held by Tusla related to the matter and her children.
An acknowledgement was issued by Tusla on 12 December 2022, confirming that a copy of the applicants ID and the daughter’s birth cert had been received that day, and that a decision would issue not later than 12 January 2023. Tusla issued its decision on 19 December 2022, wherein, it partially granted the applicant’s request under section 37(1), 37(7) and 35(1)(a) of the FOI Act. As part of its decision, it said that it considered that the release of these records would constitute a significant invasion of privacy of the third parties to whom the records relate, and determined on that basis that the public interest, would on balance, not be better served by granting than by refusing the request.
On 19 January 2023, the applicant applied via her solicitors for an internal review of Tusla’s decision. On 9 February 2023, Tusla varied its original decision and provided access to some more parts of the records. It also affirmed its refusal to certain information. It stated that it receives sensitive information on a daily basis regarding children, and that it was satisfied that the information in question was provided in confidence. It further argued that a lot of the information in question concerning the applicant’s daughter, was not possible to release without disclosing the personal information of persons other than the applicant and her daughter.
On 15 February 2023, the applicant applied via her solicitors to this Office for a review of Tusla’s decision. The applicant argued that as she was her daughter’s primary carer, she is responsible for the care and protection of her daughter, and on that basis she required full access to the report in order to provide this care.
In its submissions to this Office, Tusla indicated that it has also considered the right of access to minor’s records where the requester is a parent, and it is in the child’s best interests, in line with S.I No. 218 of 2016 – the Freedom of Information Act 2014 (Section 37(8) Regulations) 2016 (the 2016 Regulations). As Tusla did not reference the 2016 Regulations in either its original decisions or its internal review decision, the applicant had not had a chance to consider them in the context of this case. Accordingly, in the request for submissions which issued to the applicant’s solicitor she was put on notice of Tusla’s consideration of the 2016 Regulations and to invite her to make any additional submissions that she wished. The applicant provided her submissions subsequently.
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 exchanged between parties, the applicant’s appeal for review, the submissions made by the applicant and the submissions made by Tusla in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review Tusla clarified that it was no longer seeking to rely on section 35, and having reviewed the records it was more appropriate to apply sections 37(1) or 37(7) to that information. It also applied section 31(1)(b) to page six of the records. Accordingly, this review is solely concerned with whether Tusla, was justified in refusing, under sections 37(1), 37(7) and 31(1)(b) of the FOI Act, the applicant’s request for access to the social work report concerning her daughter.
Before I consider the substantive issues arising, I would like to make three preliminary comments. Firstly, 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.
Secondly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Thirdly, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Section 37(1) and 37(7)
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. 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).
The records in question comprise a social work report regarding the applicant’s daughter over the course of a year. It contains information relating to the applicant, her parents and other members of her extended family. Mindful of the provisions of section 25(3), I cannot provide a detailed description of the records. However, I can say that they generally comprise of details of the family’s engagement with social workers, following the incident which took place between the applicant and her daughter. Some of the engagement with third parties in the report are detailed and sensitive relating to the relationship between the applicant and her daughter.
The applicant via her solicitors has argued that the minor in question is residing with the applicants ex – husband in breach of a court order and without her consent. She has argued that the address should be released to her as he is in breach of a court order by moving the minor to a temporary address, and not disclosing where she is living.
I do not have jurisdiction to make a judgement as to the right of the parents to move/not move the child, or to determine whether the minor should reside at one address or another. In the circumstances, it would not be appropriate for me to make a determination on same. Based on the argument above, it seems to me that an alleged matter concerning the child’s whereabouts and the mother’s right to have access to information concerning same, would be more appropriately dealt with via the Courts.
While it is regrettable that it appears Tusla did not apply redactions consistently throughout the report in line with the requirements of section 37, it does appear that Tusla endeavoured to release records to the greatest extent possible where the applicant was concerned, it said that it was not possible to separate the applicant’s details from third parties in all circumstances.
Having examined the withheld information, it comprises either personal information relating solely to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to personal information relating to other identifiable individuals i.e. joint personal information. I am satisfied that the release of any additional information would involve disclosure of personal information relating to individuals other than the applicant and that section 37(1) applies.
Section 37(2)
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 the circumstances in section 37(2) applies in this case.
Section 37(5)
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.
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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.
In relation to the issue of the public interest, it is also 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 true public interest should be distinguished from a private interest.
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 will therefore 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.
As noted previously, I am required to disregard the applicant’s reasons for making the FOI request except insofar as it can be construed as a public interest. The applicant has outlined her position via her solicitors, that there can be no public interest in denying a mother information on where her daughter is living. She has also argued that her own best interests have not been taken into account by Tusla, and contended that as her daughter’s primary carer she needs access to the report in order to provide the best care possible for her daughter and to ensure that all necessary information has been provided for her daughter to have the right support to address all the issues.
I also note Tusla’s arguments which stated that it did not consider that the grant of the information to a third party, would be of benefit to the individuals concerned.
I have carefully examined the contents of the records at issue and considered the arguments put forward by the parties. I am mindful that the matter is a delicate one for all parties involved. I have taken into consideration the large amount of information which Tusla have already granted to the applicant and I also note that the remaining information contained in the records is of an inherently private nature relating to the third parties involved. I have also considered the fact that the release of information under the FOI Act is, in effect, release to the world at large. I am not satisfied that the public interest in granting access to the information at issue, on balance, outweighs the public interest in upholding the right to privacy of the third parties concerned. I find therefore, that section 37(5)(a) does not apply.
Section 37(8) of the FOI Act (the 2016 regulations)
As outlined above, in its submissions Tusla also indicated that it had considered the right of access a minor’s records in line with the 2016 Regulations. The 2016 Regulations are relevant by virtue of Sections 37(8) of the FOI Act, which provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide for the grant of an FOI request to a parent or guardian where:
4. (a) individuals who, on the date of the request, have not attained full age,
Among other things, the 2016 Regulations provide that, notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a minor and shall, subject to the other provisions of the FOI Act 2014, be granted, where
6. The condition referred to in Regulation 4(a) is that the individual specified in Regulation 5 is an individual access to whose records would, in the opinion of the head having regard to all the circumstances, be in the individual’s best interests.
It is clear from the records that the applicant’s daughter is still a minor, and therefore falls within the category of persons set out in paragraph (a) of the 2016 Regulations above.
In its submissions, Tusla stated that, the requester was considered to fall within the class of relevant person entitled to access the records, subject to other considerations of the minor concerned. It stated that a decision was formed however, that the release of the records in their entirety would not be in the minor’s best interest. It considered that certain parts of the records could be detrimental to the relationship between the minor and the applicant and that future initiatives to repair the relationship could be impacted. In addition, it felt that disclosure was likely to have an impact on the confidence of the minor or other minors in similar circumstances, in making confidential disclosures to relevant persons without fear of negative outcomes. The fact also that release would effectively be to “the world at large” was taken into account. Tusla further advised that the principles of its child welfare and protection policy acknowledge that the best interests of the child should be paramount in all decision making processes.
The applicant’s solicitor has argued for the release of the records on the basis already set out above and has further alleged that Tusla does not have the full picture or understand the depth of the relationship between the applicant and her daughter having only spoken to the applicant once over the phone for an hour. It has also been alleged that the case was not correctly investigated in the views of the applicant and that there are numerous errors in the file.
As stated above, this Office has no remit to investigate complaints or to adjudicate on how FOI bodies perform their functions generally. Accordingly, I cannot take into consideration the applicant’s arguments as to Tusla’s handling of the complaint.
As I have set out above, for a right of access to exist, the Regulations require that access to the records would, having regard to all the circumstances, be in the individual’s best interests. The issue to be decided, therefore, is whether the best interests of the applicant's daughter will be served by the release to the applicant of those records disclosing her daughter’s personal information.
The Minister for Public Expenditure and Reform has published guidance in relation to access to records by parents under section 37(8) of the FOI Act (i.e. Central Policy Unit Notice 25, available on www.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidance when performing their functions under the FOI Act. In particular, section 2.1(B) of the Minister's guidance lists the following as factors to be considered:
The guidance also suggests that, where appropriate, there should be a consultation with the minor concerned to establish his or her views on the release of his or her personal information to a parent. In the particular circumstances of this case, I do not consider it appropriate for this Office to consult with the applicants' daughter.
As I have outlined above, Tusla has expressed its view that it would not be in the best interests of the child to release the information concerned. The applicant maintains that she requires the full report to be able to provide the best care possible to her child.
Having regard to the evidence and arguments available to me in considering whether the best interests of the child would be served by releasing the records, I have had regard to the sensitive nature of the records and the fact that the minor concerned made disclosures in confidence regarding the matter.
I would add that while the Supreme Court held in the case of McK v. The Information Commissioner [2006] IESC 2 that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child, the contents of the records is a relevant factor. While the applicant is entitled to the presumption that she will act in the best interests of the child, it is my view that based on the nature and contents of the records, the provision of further information to the applicant carries the potential to negatively impact the best interests of the child. I also accept, based on the records contents that the release of the records concerned would be potentially damaging to the minor, and potentially damaging to the relationship between the minor and her mother.
Having carefully considered the matter and having regard to all the circumstances, I find that granting access to the records at issue would not be in the individual’s best interests and as such, that no right of access exists under the 2016 Regulations.
In conclusion, I find that the Tusla was justified in refusing access in part, under section 37(1) of the FOI Act, to the social work records concerning the applicant’s daughter.
Section 31(1)(b)
Having regard to my findings on section 37 in this case, there is no need for me to consider Tusla’s reliance on section 31(1)(b) (contempt of court) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision in this case in refusing the applicant’s request for information contained in social care records concerning her daughter.
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