Decision
Mr B and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-120030-Z7M0G6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-120030-Z7M0G6
Published on
Whether Tusla was justified in refusing to grant access to a record in part, comprising a meeting attendance note, on the basis of sections 37(1) and 37(7) of the FOI Act.
10 June 2022
In correspondence dated 9 October 2020, the applicant sought access to all records relating to him and to particular matters involving him. This request was received by Tusla on 23 October 2020. On 6 September 2021, the Tusla FOI Officer wrote to the applicant apologising for the delay and proposing that he review the relevant files in the company of a member of the social work team. I shall address Tusla’s delays in processing the applicant’s request further below.
Tusla stated that a meeting took place on 26 October 2021, at which point the applicant reviewed the records identified in the company of Tusla staff. No original decision letter was issued by Tusla in respect of the FOI request; Tusla stated in submissions to this Office that the applicant was provided with reasons for the decision and informed of his right to review in person during the meeting of 26 October 2021.
Tusla stated that during the meeting the applicant sought two additional documents; a copy of correspondence previously issued to the applicant, dated 31 September 2020 (sic) and a meeting attendance note dated 15 January 2014 (the attendance note).
On 1 December 2021, Tusla wrote to the applicant, enclosing a copy of the two additional documents requested and noted that ‘considerable redactions’ had been made to the documents. No specific provisions of the FOI Act were cited. At this point the applicant engaged in correspondence with Tusla seeking copies of the two records without redactions. On 10 January 2022, the applicant sought an internal review of the decision. In this correspondence he specifically requested “to view the original attendance note without any redactions”.
On 20 January 2022, Tusla issued its internal review decision. The internal review related solely to the request for access to the attendance note. It decided to vary the original decision and to release additional information contained in the attendance note. It withheld the remaining information in the record sought under section 37(1) and 37(7) of the FOI Act. In correspondence received in this Office on 25 February 2022, the applicant sought a review of Tusla’s decision.
I have now completed my review in accordance with the provisions of section 22(2). In conducting the review, I have had regard to the correspondence between TUSLA and the applicant as described above, and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In his application for review, the applicant solely referred to Tusla’s decision to redact information from the attendance note, which was on the basis of section 37 of the FOI Act. Tusla confirmed in its submissions to this Office that the correspondence previously issued to the applicant and dated 31 September 2020 was provided to the applicant through the social work office in November 2021.
Accordingly, this review is concerned solely with whether TUSLA was justified in its decision to withhold certain information from the relevant record under section 37 of the FOI Act.
At the outset, I wish to address the lengthy delay in Tusla issuing its decision in this matter. The processing of the applicant’s case fell well below the required standards. The applicant was not provided with access to the records initially requested until just over 12 months after his request was received by Tusla. I also note that Tusla did not provide the applicant with the initial decision in writing nor did it provide detail in respect of the reasons for the decision to refuse the release in part of the additional documents sought as required by the FOI Act.
As this Office has stated on many occasions, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function. In response to queries from this Office, Tusla stated that it is unable to account for the considerable delay in processing the applicant’s request.
In this regard, I encourage Tusla and all decision makers to use the FOI resources available, including guidance on the FOI Act published by the Central Policy Unit of the Department of Public Expenditure and Reform and by my Office, to assist them in their decision-making and in ensuring that their decisions comply with their obligations under the Act.
Separately, 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 record is limited.
It is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
Section 37(1) provides for the mandatory refusal of a request if granting access to the record sought would involve the disclosure of personal information relating to a third party, including a deceased individual. Section 2 of 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.
Moreover, section 37(7) provides for the mandatory refusal of a request if granting access to the record sought 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, any such personal information that is inextricably linked to personal information relating to parties other than the applicant is exempt. However, it is important to note that section 37(1) is subject to the other provisions of section 37, and those provisions must be considered before the request can be refused.
Having examined the relevant record, it seems to me that there are three categories of information at issue, namely:
1. personal information relating to individuals other than the applicant,
2. personal information relating to the applicant that is inextricably linked to personal information relating to other individuals (joint personal information), and
3. personal information relating to the applicant’s son.
In sum, I am satisfied that the release of any or all of the redacted information would involve the disclosure of personal information relating to individuals other than the applicant. It may well be the case that a considerable amount of the withheld information is generally known to the applicant and indeed was provided by the applicant during the course of a meeting. However, that information relates to third parties and I must have regard to the fact that a record released under the FOI Act effectively amounts to disclosure to the world at large. Accordingly, I find that section 37(1) applies to the information in question.
In relation to the information to which I have found section 37(1) to apply, that is not the end of matter as section 37(1) is subject to the provisions of subsections (2) and (5).
Subsection (2) provides that subsection (1) does not apply in certain circumstances. In his submissions to this Office, the applicant made arguments in respect of the application of sections 37(2)(a) and 37(2)(e). Having examined the record, I am satisfied that the circumstances identified at sections 37(2)(b)-37(2)(d) do not arise in this case.
Section 37(2)(a) provides that, subject to subsection (3), section 37(1) does not apply if the information relates to the requester. The applicant has argued that the information relates to him and concerns matters discussed at a meeting he attended and that 37(2)(a) therefore applies. However, I am satisfied that the record contains information which constitutes personal information of individuals other than the applicant. In addition, section 37(7), relating to joint personal information, applies notwithstanding this subsection. The fact that the applicant may already know the information concerned, and may have in fact discussed it during the course of the meeting, is irrelevant. As noted above, release of the record under FOI would effectively amount to disclosure to the world at large. I am satisfied that section 37(2)(a) does not apply to the particular information which is the subject of this review.
Section 37(2)(e) provides that section 37(1) does not apply if disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
The Commissioner takes the view that the test to be met in section 37(2)(e) is a high one. The risk to life or health must be serious and must be imminent. This means that the degree of danger must be grave and the danger must be impending or close at hand. It must also be shown that disclosure of the information is required in order to avoid such harm. A clear link must therefore be established showing that disclosure of the information is necessary for such purposes.
In his submissions to this Office, the applicant made a number of arguments as to why he believes section 37(2)(e) applies. I will not repeat these arguments as to do so would result in the disclosure of sensitive information, however, I can confirm that I have had regard to them.
This Office asked Tusla to confirm whether it considered section 37(2)(e) to apply in this case. It is Tusla’s position that the requirements of the exemption have not been met as the applicant has not provided any evidence of a risk to health or life which disclosure of the record would avoid.
I have considered the applicant’s arguments in full. This Office is not of the view that the requirements of this provision are met solely where disclosure would be of assistance to an individual or an individual's mental health, for example, by giving him or her an understanding or knowledge of an issue which is of great concern to them, even if that understanding or knowledge may be of benefit to them. In the circumstances of this case, I do not believe that the high bar of section 37(2)(e) has been met. Therefore, I am satisfied that the section does not apply to the particular information which is the subject of this review.
Subsection (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 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 subsection 5(b) does not apply in the circumstances of this case.
In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.
In relation to the issue of the public interest, and having 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, it is important to note that a 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.
Having examined the record at issue in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
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 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.
The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016), as amended, are the relevant regulations in this case (the Regulations). Among other things, the Regulations provide that, notwithstanding section 37(1), the Minister for Public Expenditure and Reform ("the Minister") may make regulations for the grant of an FOI request in certain circumstances where the requester is the parent or guardian of the individual to whom the record relates.
The Regulations provide that a request for access to records which involves the disclosure of personal information relating to a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances, access to the records would be in the minor's best interests. The Minister for Public Expenditure and Reform has published Guidance regarding access under section 37(8) and this details factors to be considered in relation to granting access to parents/guardians and regarding consultation with minors or incapacitated adults.
The grant of a request in relation to a record under the Regulations is “subject to the other provisions” of the FOI Act. Thus, other provisions of the FOI Act may be relevant in relation to the record concerned and may need to be considered. Neither section 37(8) nor the 2016 Regulations provide a basis for releasing records, or parts of records, which contain personal information relating to a minor and a third party, except where the third party is the requester.
The record in question contains eight references to the applicant’s son. Of these, it appears that six may be linked to the personal information of a third party, other than the applicant. Two references appear to relate to the applicant’s son alone.
I find that there is insufficient evidence before me to make a definitive determination either way on whether the applicant has a right to access to this information under section 37(8) and the Regulations. In the circumstances, I am satisfied that the appropriate approach for me to take is to annul Tusla’s decision in part and remit the matter back to it for further consideration in respect of section 37(8) and the Regulations. Specifically, I am annulling the decision in respect of the eight redacted references to the applicant’s son and remitting same back to Tusla for consideration. In this respect, Tusla should also have regard to the relevant guidance published by the Minister.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of Tusla. I affirm Tusla’s decision to refuse access, under section 37(1) and section 37(7), to information in the records relating to third parties apart from personal information relating to the applicant’s son. I annul Tusla’s decision to refuse to release the information in the record relating to the applicant’s son and direct it to undertake a fresh decision making process on these parts of the record, taking into account section 37(8) and the Regulations.
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.
Stephen Rafferty, Senior Investigator