Decision
Mr X and the Child and Family Agency
From Office of the Information Commissioner (OIC)
Case number: 150258
Published on
From Office of the Information Commissioner (OIC)
Case number: 150258
Published on
Whether Tusla was justified in its decision to redact certain information from records held by it relating to the applicant's son
Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
13 May 2016
The applicant submitted a request to Tusla on 26 February 2015 for a copy of his named son's file. Tusla issued a decision on 8 April 2015, in which it released 17 records (comprising 56 pages) to the applicant, three in full and the remaining 14 in part.
The applicant sought an internal review of Tusla's decision on 19 April 2015. Tusla issued its internal review decision on 26 May 2015, in which it released some additional information to the applicant, and affirmed the remainder of its original decision to redact information under sections 35 and 37 of the FOI Act. The applicant sought a review by this Office of Tusla's decision on 17 August 2015.
I note that Mr Art Foley of this Office spoke with the applicant on a number of occasions during the course of this review, clarifying certain issues for him and determining whether further records relating to his request existed. He also informed the applicant of his view that Tusla was justified in redacting the information from the records it had released to him. The applicant, in the course of these conversations, indicated that he did not agree with Mr Foley's view, and that he wished for this review to proceed to a decision. Therefore, I consider it appropriate to bring this review to a close through the issue of a formal, binding, decision.
In conducting this review I have had regard to the correspondence between the applicant and Tusla on the matter, to correspondence between this Office and both the applicant and Tusla, and to the contents of the records at issue. In referring to the records at issue, I have adopted the page numbering system used by Tusla in the schedule it provided to this Office.
This review is concerned with whether Tusla was justified in granting only partial access to the records sought by the applicant.
Before I address the substantive issues arising in this review, I would like to comment on Tusla's handling of one particular aspect of the FOI request. During the course of discussions with the applicant, Mr Foley of this Office noted that the redactions highlighted in the copies of the records that were forwarded to this Office did not appear to precisely match the redactions made to the records released to the applicant. It appears that a small amount of additional information that was redacted from the records provided to this Office was released to the applicant. It would appear that the discrepancy between both sets of records arose because Tusla did not keep precise copies of the records released to the applicant on its FOI file. Had it done so, this issue would have been avoided. While it is entirely appropriate that Tusla would seek to release as much information as it deems possible when processing FOI requests, it is important to retain a record of exactly what information has been withheld in the event of a possible review, either internally or by this Office. I trust Tusla will take appropriate measures to ensure that a similar situation does not occur again.
For the purposes of this review, I have decided to conclude this review on the basis of the redactions contained in the records provided to this Office. In doing so, I am of the view that the applicant has not been disadvantaged by Tusla's error, particularly given the nature of the the information at issue.
I would like to make two further points before dealing with the substantive issues. Firstly, I note that during the course of telephone conversations with this Office, the applicant expressed his strong dissatisfaction with the manner in which Tusla carried out its core functions in relation to matters concerning his son. As Mr Foley of this Office explained to the applicant, this Office's remit does not extend to commenting on the manner in which an FOI body performs its functions generally, or to investigating complaints against an FOI body.
Secondly, it is also important to note that under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. This is of particular relevance where the question of the release of information relating to third parties is at issue.
While Tusla cited sections 35(1)(a) and 37(1) in withholding certain information, I am satisfied that section 37(1) is of most relevance in this case. Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that 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 referred to as joint personal information.
The records at issue relate to Tusla's examination of matters concerning the welfare of the applicant's children. As such, they contain inherently private, sensitive information about all members of the family including not only the applicant and his named son, but his wife and two other children. Having carefully examined the records, I am satisfied that the vast majority of the redactions comprise either personal information relating to parties other than the applicant and/or his son, or joint personal information relating to the applicant and/or his son that is inextricably linked to personal information relating to third parties. Accordingly, I find that section 37(1) applies to such information.
There are a small number of redactions where the information redacted is not, in my view, personal information relating to third parties. I find that section 37(1) does not apply to the following information:
While I have found section 37(1) to apply to the vast majority of the redactions, that it not the end of the matter as section 37(1) is subject to the other provisions of section 37, including sections 37(2) and 37(5).
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise 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 relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 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.gov.ie). In the 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 applicant, in his request for a review by this Office, stated that he is seeking the records at issue in order to vindicate the best interests of his children. I have no doubt that this is the case. However, it would appear that this is, in essence, a private interest as opposed to a public interest as set out in the Rotunda judgment mentioned above.
Nevertheless, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in 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.
The information which has been redacted from the records at issue in this case is of a private and personal nature. While there is a public interest in ensuring openness and transparency in the manner in which Tusla performs its functions, I am of the opinion that this has been met to some degree by the partial release of the records at issue. Having carefully considered the matter, I consider that the public interest in the release of the redacted information in this instance does not outweigh, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
On the matter of whether the information that I have found not to be exempt from release under section 37 is otherwise protected under section 35, which concerns information given to a public body in confidence, I do not consider that the information in question, pertaining to the staff of FOI bodies, could reasonably be considered as having been given to Tusla in confidence in this case. For the avoidance of doubt, I find that section 35 does not apply to this information.
In conclusion, therefore, I find that Tusla was justified in refusing access to the information withheld from the records at issue apart from the information I have identified above pertaining to the staff of FOI bodies.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of Tusla. I find that Tusla was justified in refusing access to the information withheld from the records at issue apart from the following:
I direct the release of this information.
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 applicant 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