Decision
Ms X and Ms Y and Tusla - Child and Family Agency
From Office of the Information Commissioner (OIC)
Case number: OIC-137505-C8W1G1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-137505-C8W1G1
Published on
Whether Tusla was justified in refusing access to records relating to both applicants as well as to the first-named applicant's minor son
13 October 2023
In a request dated 13 December 2022, the applicants sought access to “any data or information” held by Tusla about themselves and the first-named applicant’s minor son, to cover the period 1 January 2021 to the date of the request. In a decision dated 19 January 2023, Tusla initially identified 375 records that fell within the scope of the applicants’ request (subsequently clarifying that the correct number of records was 371), comprising a National Childcare Information System (NCCIS) file in two parts and a Prevention, Partnership and Family Support (PPFS) file. Part one of the former consists of 65 records, and part two 255 records, while the latter file comprises 51 records (for the purposes of this review, I will refer to the records by file type and record number, for example “NCCIS file part one, record 1”, “PPFS file record 1”, etc)
In its decision, Tusla part-granted the request, relying on sections 17(2), 31(1), 32(1), 37(1) and 37(7) of the FOI Act as grounds for withholding the records to which it refused access in whole or part, as well as Statutory Instrument No. 218/2016 – Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (“the 2016 Regulations”). In addition, Tusla withheld records 9-18 from the PPFS file on the basis that this material had already been released to the applicants in response to a previous FOI request. Tusla also identified a fourth category of records that it withheld in full under section 37(1) of the FOI Act.
On 15 April 2023, the applicants sought an internal review of Tusla’s decision. Tusla failed to issue its internal review decision within the timeframe specified in the FOI Act, and on 14 March 2023 the applicants sought a review by this Office of Tusla’s decision. On 5 April 2023, following intervention from this Office, Tusla issued the applicants with notification of its effective decision, wherein it confirmed its original decision. The applicants subsequently confirmed that they remained dissatisfied and wished to pursue their request to this Office for a review of Tusla’s decision.
A number of records from NCISS file part two – namely records 30-31, 33-37 and 149-151 –were withheld by Tusla on the basis that they were duplicates of other records in that file that were withheld fully or in part. In addition, record 41 from the PPFS file was withheld by Tusla on the basis that it was a duplicate of another record in that file that had been released to the applicants in full. Furthermore, records 81-86, 93, 96, 107-108, 167, 169 and 173, from NCISS file part two, were withheld on the basis that they were outside the scope of the request (being blank pages). I contacted the applicants to explore the possibility of excluding from the scope of the review the above-mentioned records on the basis that they were either released previously, or were duplicates of other records that come within the scope of this request, or which were blank pages. The applicants subsequently reverted to indicate that they did not wish for any records to be excluded from the scope of this review, and I address this in the following section.
In addition, In the course of conducting this review, I formed the opinion that Tusla’s decision to withhold records 9-18 from the PPFS file on the basis that they had already been released to the applicants amounted to an administrative refusal of this aspect of the FOI request under section 15(1)(i). As the applicants had not had an opportunity to consider this provision of the FOI Act in the context of their request, I wrote to them to put them on notice of same and to invite them to make any further submissions that they wished. No further submissions were received from the applicants on this issue.
Moreover, following correspondence from this Office in relation to the records Tusla sought to withhold from release under section 17(2), it indicated that it no longer sought to rely on that provision of the FOI Act, but that it also considered the relevant records to be exempt from release under section 31(1)(b). As the applicants had not had an opportunity to consider this provision of the FOI Act in the context of this aspect of their request, I wrote to them to put them on notice of same and to invite them to make any further submissions that they wished. Further submissions were subsequently received from the applicants, which I have considered in full and which I address below.
In addition, in the course of this review I formed the view that certain sections of some of the records that Tusla sought to withhold under section 37(1) had the potential to affect the interests of a third party. I therefore contacted the third party to bring the matter to its attention, and to invite them to make any submissions that they wished. No submissions were received from the third party.
Furthermore, in the course of this review, Tusla carried out a further appraisal of the records, on foot of which it released additional records in whole or part to the applicants. In particular, Tusla indicated that it no longer sought to rely on section 32(1). Of the additional records that it part-released, Tusla continued to withhold information from the records on the basis of sections 31(1)(b) and 37(1) of the FOI Act. Tusla also released the previously-withheld blank pages from NCISS file part two to the applicants.
Following Tusla’s reappraisal of the relevant records that it had initially withheld under sections 32(1) and 17(2), the status of the records that fall to be considered in this review can be summarised as follows:
NCCIS file part one
NCCIS file part two
PPFS file
As outlined above, Tusla also identified a fourth category of records that it withheld in fulkl under section 37(1).
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 and the applicants, and the correspondence exchanged by the parties in the course of the applicants’ request. 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.
As outlined above, Tusla indicated that records 30-31, 33-37 and 149-151, from NCISS file part two, as well as record 41 from the PPFS file, were duplicates of other records. Having examined these pages, and notwithstanding the applicants’ expressed wish to have them included, I am satisfied that they are indeed duplicate records and I therefore consider that it not necessary for me to consider them in the course of this review.
Accordingly, this review is solely concerned with whether Tusla was justified, under sections 15(1)(i), 31(1), 37(1) and 37(7) of the FOI Act, in withholding fully or in part the remaining records sought by the applicants.
I wish to note that section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. Therefore, although I am obliged to give reasons for my decision, the description which I can give of the records at issue and the material that I can refer to in the analysis is limited
In addition, I wish to note that the release of records under FOI is generally considered to equate to their release to the world at large, as the FOI Act places no restrictions on the use to which released records may be put.
Moreover, it is also important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Finally I note that, as outlined above, Tusla failed to issue its internal review decision on the applicants’ request within the timeframe set down in the FOI Act. Tusla cannot but be well aware of its obligations in this regard. It is incumbent on me to emphasise to Tusla that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. Tusla should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.
Section 37
I consider it appropriate to examine first of all the applicability of section 37 to the records at issue. Tusla relied on section 37(1) to withhold information from the following records:
In addition, Tusla cited section 37(7) as a basis to withhold information from the following records:
As outlined above, Tusla also identified a fourth category of records that it withheld in full under section 37(1).
Section 37(1)
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. 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, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, section 2 details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
In addition, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In its submissions regarding section 37(1), Tusla stated that the information withheld from the records included material relating to third parties which fell within the definition of personal information in section 2. This included the names, addresses and telephone numbers of individuals, as well as references to the medical history of individuals.
I have reviewed the material withheld by Tusla under section 37(1) of the FOI Act, and in the case of the majority of such material, I accept that is personal information for the purposes of section 2. However, for the reasons set out below, I do not accept that the following information in the records is personal:
“The essential question to be decided in relation to all the records sought is whether they contain information about Mr AAG. Where a document contains a record of the views, comments or actions of a company director in relation to the business of the company or the views, comments or actions of another party in relation to the company director in his capacity as a director, I am of the view that the mere reference to the director by name in the record is not sufficient to enable it to be said that the record relates to personal information about the director. A company can only act through the agency of natural persons, generally its directors or employees. As a consequence it is almost inevitable that in a record referring to matters about a company or its business, references will also be made to such persons. In such cases it is necessary to decide whether the information in the record is about that individual or about the company….
It is clear from the definition of "personal information" that the term can only apply to information about an identifiable individual, meaning a natural person as opposed to a legal person such as a company. In my view there is no basis for seeking to treat a company as the same person as its directors or shareholders or any of them, for the purposes of the FOI Act.”
On this basis, it seems to me that the first redaction made to records 120, 138, 142 and 146 of NCCISS file part two is information is about a business and does not comprise personal information relating to an individual. The fact that the name of the business may incorporate the name of an individual does not, in my view, mean that the information is personal information relating to that individual for the purposes of the FOI Act. It is also notable that the name of the individual appears elsewhere in the same records, in the same business context, and has not been redacted by Tusla.
Section 37(7)
Section 37(7) provides that, notwithstanding subsection (2)(a) (which provides that section 37(1) does not apply where the information relates to the requester), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester, in other words where the record contains joint personal information.
In its submissions, Tusla stated that the material it had withheld under section 37(7) related to family members of the first-named applicant’s minor child and other third parties. This included information relating to third party engagement with Tusla in respect of the minor. Therefore, according to Tusla, the release of this information would involve disclosing personal information relating to individuals other than the requesters and the minor.
I have examined the material that Tusla has withheld from the records under section 37(7) and, in the majority of cases, I accept that it is joint personal information for the purposes of that provision of the FOI Act. However, for the reasons set out below, I do not accept that the following information in the records is joint personal information:
In relation to the information in the records that I have identified above as either personal to individuals other than the applicants, or as joint personal information, the matter does not end there as 37(1) is subject to the other provisions of section 37, while section 37(7) is subject to section 37(2)(b) to (e), section 37(5) and 37(8). Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
Section 37(5) 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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the FOI Act does not apply.
In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals 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, which 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.
In its submissions regarding section 37(5)(a), Tusla identified a number of public interest factors in favour of releasing the information at issue. These included: the public interest in a person’s right to know the views or opinions that Tusla held on file about them, and in being provided with records containing this information; the public interest in individuals knowing that information held by public bodies about them is accurate; the public interest in the requesters exercising rights of access under the FOI Act; and the public interest in public bodies being open, transparent and accountable in the performance of their duties. Against this, Tusla identified a number of public interest factors against release. These included: the public interest in individuals being able to communicate in confidence with public bodies, and without fear of disclosure of sensitive family information; the public interest in safeguarding the flow of information to public bodies; the public interest in public bodies being able to perform their functions effectively; the public interest in protecting the rights of privacy of individuals to whom the information relates; and the public interest in maintaining the privacy of third parties. Tusla stated that it had weighed up the public interest factors both for and against the release and had concluded that, on balance, the public interest was better served by withholding the information in the records at issue.
The information that I have identified in the records as falling within the scope of sections 37(1) and 37(7) is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) and the 2016 Regulations
Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where:
“(a) the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual…”.
Such regulations have indeed been made, in the form of the 2016 Regulations. 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 the requester is a parent or guardian of the individual to whom the record concerned relates and that individual has not, on the date of the request, attained full age. The first-named applicant’s minor child falls into this category.
Regulation 6 of the 2016 Regulations provides that the above-mentioned right of access shall apply where, in the opinion of the FOI body, access to the record would, having regard to all the circumstances, be in the individual’s best interests. In order to address the question of whether release of the information at issue in this case would be in the best interests of the minor child, I have had regard to the guidance published by the Minister for Public Expenditure and Reform in relation to access to records by parents under section 37(8) (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 minor child.
Tusla did not address directly address section 37(8) or the 2016 Regulations in its submissions. This notwithstanding, I consider that it is clear from its submissions in relation to section 37 generally, as well as its comments in its initial decision on the applicants’ FOI request (in which it did directly address the 2016 Regulations), that its view is that to release the relevant information would not be in the best interests of the child.
In considering whether the best interests of the child would be served by releasing the records, I have weighed up the available evidence and arguments and note in particular the sensitive nature of the records. I would add that, while the Supreme Court in the case of McK v. The Information Commissioner [2006] IESC 2, held 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 first-named applicant is entitled to the presumption that she will act in the best interests of the child, it is my view (based on the nature and contents of the records) that the provision of further information to the applicant carries the potential to negatively impact the best interests of the child. In particular, given that the release of information under FOI is generally considered to constitute release to the world at large, I consider that the release of the information relating to the minor would result in a significant risk of a breach of the minor’s right to privacy.
Accordingly, I find that the 2016 Regulations do not operate in this case to grant a right of access to the applicants to information relating to the first-named applicant’s minor child that Tusla withheld under section 37 of the FOI Act.
On the basis of the above analysis, I find that, with the exceptions of the material I have found not to be personal information for the purposes of section 2, Tusla was justified in refusing access to the records that it withheld in full under sections 37(1) and 37(7), and to the parts of the records it redacted under those provisions of the FOI Act. For the avoidance of doubt, the information that I have found not to be personal, and which is therefore not exempt under section 37, is:
Section 31
Tusla relied on section 31(1)(b) to withhold information from the following records:
In circumstances where I have already determined that section 37 operates to exempt from release certain of the above records that Tusla withheld in whole or part under section 31(1)(b), I am not required to further examine the applicability of the latter provision of the FOI Act to those records (or parts of records). The relevant material in this regard is:
It therefore remains for me to examine the extent to which records 18, 74-76, 94, 114-119, 123-133 and 153-155 of NCISS file part two are exempt in full from release under section 31(1)(b), as well as whether the remaining redactions made to parts of the records under section 31(1)(b) were justified.
Section 31(1)(b) of the FOI Act provides for a mandatory exemption from release for a record in respect of which the head of the FOI body knows or ought reasonably to have known that its disclosure would constitute contempt of court. It should be noted that 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 such proceedings are held in private or otherwise than in public, and applies to certain proceedings including certain family law proceedings and certain proceedings involving minors.
In its submissions on section 31(1)(b), Tusla stated that it was the nature of childcare proceedings that they are held in camera to protect the individuals before the court – in other words, that the court proceedings were closed to the public. Tusla stated that, were it to release the information in the records that arose from discussions that took place, or decisions that were made, within the in camera court setting, it would be in contempt of court. Tusla stated that, as it was satisfied that the disclosure of the relevant information in the records would constitute contempt of court, it had no further discretion in the matter and was required to withhold the information under section 31(1)(b).
In relation to the material that Tusla had initially sought to withhold under section 17(2) of the FOI Act, before later relying on section 31(1) (namely records 123-133 of NCISS file part two), I sought further information as to the basis on which it considered that section 31(1) applied. In response, Tusla stated that these records – which comprise a letter written by the first-named applicant to Tusla – when received by Tusla caused a Social Work Team Leader to have certain immediate concerns for the first-named applicant’s health, and subsequently a welfare check was sought from An Garda Siochana. Tusla stated that a Judge who had been dealing with certain family law matters involving the first-named applicant and her minor child became aware of the letter, and on foot of the letter made certain Court Orders in relation to the minor child. Tusla stated that the records comprising the letter, therefore, formed part of Tusla’s submission in the course of certain childcare proceedings, were therefore covered by the in camera rule, and that disclosure of same would accordingly constitute contempt of court.
As outlined above, I also put Tusla’s reliance on section 31(1)(b) in respect of records 123-133 of NCISS file part two to the applicants, and invited them to make any further submissions that they wished. In response, the first-named applicant stated that she had been present in court during the relevant proceedings, and fully understood the in camera rule, and in particular was aware that it the rule would operate to prohibit her from further disseminating the records at issue.
In many cases a requester seeking access to such records may have been a party to the in camera proceedings, and both this Office and, significantly, the Irish courts have previously held that the identity of the requester is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b). In a previous decision of this Office (Case 000137), the then Commissioner found that neither the identity of the person seeking the records, nor whether the information contained in the records is already known to the requester, were relevant considerations in the application of the equivalent provision in the FOI Act 1997 to section 31(1)(b) of the FOI Act 2014. I consider that this finding is of direct relevance to the circumstances of this case.
Furthermore, in L. K. v The Information Commissioner [2013] IEHC 373, the appellant had sought access to a report which had been prepared for District Court proceedings held in camera. The District Judge had also made an order in relation to the report. In the High Court, Ms J O’Malley, in considering the in camera rule and the order by the District Court judge, stated:
“The Information Commissioner has no authority to disregard either the statutory provisions relating to the in camera nature of the child care proceedings or the court order made in the case. It is no part of his powers to decide that the order was wrong, or that the appellant's right to a copy of the report under s.27 of the Child Care Act should prevail over such an order. Neither the status of the appellant as a party to the District Court proceedings nor the purpose for which she wishes to use the report are relevant to his powers in this respect.”
On the above basis, and on the individual circumstances of this case, I do not consider that it is open to me to accept that the fact that the first-named applicant was present in court during the relevant proceedings, and that she understands the nature of the in camera rule, means that the records should be released in response to this FOI request.
In sum, I have examined the information in the records that Tusla has sought to withhold under section 31(1)(b) and accept Tusla’s contention that the material in the records (or the records in full) that it withheld from release derive from discussions that took place, or decisions that were made, in an in camera court setting, or that otherwise derive or emanate from the relevant court proceedings relating to the first-named applicant’s minor child. Accordingly, I also accept that the disclosure of this material would constitute contempt of court. It follows that section 31(1)(b) of the FOI Act applies to exempt this material from release.
Section 15(1)
As outlined above, Tusla refused access to records 9-18 of the PPFS file on the basis that this material had already been released to the applicants in response to a previous FOI request. I formed the opinion that this was an effective refusal by Tusla to grant access to the material on administrative grounds under section 15(1)(i) of the FOI Act. Section 15(1)(i) provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester and where the records are available to the requester concerned. For the section to apply, the FOI body should be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.
As noted above, I explored with the applicants the possibility of excluding this material from the scope of this review on the basis that it had already been released to them, but that they indicated that they wished it to be considered for release. As such, I sought evidence from Tusla that a previous relevant FOI request had been made by the applicants, as well as details of the records released in relation to any such request. Tusla subsequently provided such evidence and, on this basis, I accept its contention that the material in records 9-18 of the PPFS file was released to the applicants in response to a previous FOI request. In those circumstances, I find that Tusla was justified in refusing access, under section 15(1)(i) of the FOI Act, to records 9-18 of the PPFS file.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary Tusla’s decision. I find that Tusla was entitled under sections 37(1) and 37(7) to withhold the information in the records that I have identified above as personal or joint personal information. It was also entitled to withhold from release in whole or part the records in respect of which it cited section 31(1)(b), and the material to which I have found section 15(1)(i) applies. However, I direct the release of the material in the records that I have found not to be exempt under sections 37(1) or 37(7) 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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Neill Dougan, investigator