Decision
Ms F and TUSLA: Child and Family Agency (the Agency)
From Office of the Information Commissioner (OIC)
Case number: 180386
Published on
From Office of the Information Commissioner (OIC)
Case number: 180386
Published on
Whether the Agency was justified in its decision to refuse access in full and in part to records under various exemptions concerning the applicant and her son
29 March 2019
On 4 May 2018, the applicant requested access to records held by the Agency relating to her and her son. The Agency did not issue a decision and the applicant requested an internal review on the basis of her request having been deemed refused under section 19(1) of the Act. However, the Agency failed to issue an internal review decision. The applicant was entitled to regard that request as a deemed refusal also. On 13 September 2018, following communications with this Office, the Agency advised the applicant of its effective position in relation to her request and identified 1,392 records in four files. It released some of the records in full and withheld information in the remaining records in full and in part on the basis of sections 15(1)(i), 31(1)(a), 31(1)(b), 35(1)(a) and 37(1) of the FOI Act. On 19 September 2018, this Office received an application for review from the applicant.
During the review, the Agency released a small number of additional records.
I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the Agency and to correspondence between the applicant, the Agency and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. The applicant was invited to make a submission but none was received.
This review is concerned solely with whether the Agency was justified in deciding to refuse access, in full and in part, to withheld records falling within the scope of the applicant's FOI request, on the basis of sections 15(1)(i), 31(1)(a), 31(1)(b), 35(1)(a) and 37(1) of the FOI Act.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
I also draw attention to the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
The Agency refused access to records in files 2 and 3 on the basis of section 15(1)(i) of the FOI Act and that it had already considered all relevant records in files 2 and 3 on foot of a previous request.
Section 15(1)(i)(i) states that a head may refuse to grant a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. I accept that the section reflects the fact that public bodies should not have to deal with repeated requests for the same records where they are available to the requester. Nevertheless, the Act provides no guidance as to how a public body should determine if previously released records are available to the requester. It seems to me that where a public body has previously released the records sought to the requester, it can reasonably assume that they are available to the requester. Indeed, it does not appear to be in dispute that the records sought by the applicant in files 2 and 3 of her request were previously released to her, in full and in part.
The Agency stated that in the previous decision it withheld information in full and in part in a small number of records on the basis of sections 35(1)(a) and 37(1) of the Act and that the applicant did not request an internal review of that decision. Section 15(1)(i) is confined to circumstances where the records sought have already been released and does not extend to records that were considered for release but not released. If the records sought were not released, then section 15(1)(i) cannot, in my view, apply. As such, I find that records 72-100 in file 2 and records 45-47, 56-62, 112, 113, 115-119, 141-145, 152, 153 and 155-157 in file 3 are within the scope of the request and this review and I will consider them in this decision. I find that section 15(1)(i)(i) applies to the remaining records in files 2 and 3.
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
The Agency stated that records 347 and 348 in file 4 are withheld on the basis of legal advice privilege.
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely.
Having examined the records, I accept that they qualify for legal advice privilege and disclose legal advice sought or received from the Agency's professional legal adviser. Accordingly, I uphold the Agency's refusal of the records under section 31(1)(a) of the FOI Act.
Section 31(1)(b) is a mandatory exemption that requires the head of an FOI body to refuse to grant a request if the record is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court. It is not subject to a public interest balancing test.
In this case, the Agency stated that the in camera rule applies and therefore it would be a contempt of court to release the withheld information in records 26-61, 176-179, 223, 627 and 628 in file 1 and records 151-230, 276 and 332-346 in file 4.
It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The in camera rule applies to proceedings where there is a statutory requirement that such proceedings are held in private or otherwise than in public. It applies to certain proceedings including certain family law proceedings and certain proceedings involving minors. In many cases the requester seeking access to the records may have been a party to the in camera proceedings, but the identity of the requester is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).
I accept that the withheld information in the records emanated or derived from proceedings held in camera, so that the Agency is justified in its position that disclosure of the withheld information would be a contempt of court. I find therefore that the withheld information in the records is exempt under section 31(1)(b) of the FOI Act.
The Agency refused access to records in record 409 - file 1, records 72-100 - file 2 and records 131-136 and 141-150 in file 4, on the basis of section 35(1)(a) (Information obtained in confidence). Also, in file 4, records 103, 274, 275 and 277 were refused on the basis of section 31(1)(a) (legal professional privilege). However, given their content and the extent of personal information that appears in the records, I consider that section 37(1) is the most appropriate exemption to examine in relation to those records and the records already identified in the decision schedule.
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual".
During the review, the Investigator commented to the Agency that in a small number of records, the names of public servants were withheld. The Agency stated that this can sometimes arise but that generally this information is not exempted. Paragraph I of section 2 of the Act excludes certain matters from the definition of personal information where the individual holds a position as a member of the staff of the body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position. However, this Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally.
Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).
While I cannot discuss their content in any detail, I can state that information withheld in the records is personal information about third parties other than the applicant and her minor son, or personal information concerning third parties that is inextricably linked to personal information about the applicant and/or her minor son.
Accordingly, I find the records to be exempt under section 37(1) of the FOI Act.
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of these are relevant in this case.
Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In considering the public interest test in section 37(5)(a), I must have regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), available at www.oic.ie. In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, “a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law” must be distinguished from a private interest for the purpose of section 37(5)(a).
The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the Agency carried out its functions. On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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.
I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the information in the records relate. As regards section 37(5)(a), as mentioned earlier, the public interest in openness and transparency in how the Agency dealt with the applicant has been served to a large extent by the release of information in the records to her. I therefore find that the public interest in granting the request does not override the public interest in upholding the privacy rights of other individuals involved.
Some of the redactions comprise personal and sensitive information relating only to the applicant's minor child and/or joint personal information relating solely to the applicant and her child.
The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 provide for access by parents and guardians to records of minors and certain others. The Regulations provide for a right of access by parents or guardians to the personal information of individuals who, at the time of the request, have not attained full age, and where the release of the information would, in the opinion of the public body and having regard to all the circumstances, be in the child’s best interests.
The Supreme Court held in the case of McK v. The Information Commissioner[2006] IESC 2, available at http://www.oic.ie/www.oic.ie, 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 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. As discussed above, I do not consider it appropriate for this Office to contact the minor concerned.
It is the Agency's view that, having regard to all the circumstances, release of information to the applicant about her minor son would not be in the child's best interests. This Office informed the applicant about section 37(8) and invited her to make a submission on the matter. However, a reply was not received.
I am obliged to consider all circumstances set out by an FOI body when considering if release of information to a parent is in a minor's best interests. As already noted, the records contain personal and sensitive information. Particularly in the absence of submissions from the applicant, I consider the Agency to have justified its position that granting the request would not, having regard to all the circumstances, be in the best interests of the applicant's minor son.
In the overall circumstances, I find that it is not appropriate to direct that information in any remaining records be released under section 37(8) of the FOI Act. It is important to note that the disclosure of a record under FOI is understood, effectively, to be equivalent to its disclosure to the world at large. I find that the applicant is not entitled to access to the personal information of her minor son, or the joint personal information of the applicant and her minor son, further to the provisions of S.I. No. 218 of 2016. Accordingly, I find that section 37(1) of the Act applies to the records.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Agency.
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