Decision
Mr. X and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-154449-Q1X2G8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154449-Q1X2G8
Published on
Whether Tusla was justified in refusing access to records relating to the applicant
16 June 2025
In a request dated 17 October 2024, the applicant sought access from Tusla to records relating to him, and in particular to a specific incident that had occurred some years ago. In a decision dated 25 November 2024, Tusla part-granted the request, releasing records to the applicant with redactions made pursuant to sections 31(1)(b), 37(1) and 37(7) of the FOI Act. On 25 November 2024, the applicant requested an internal review of Tusla’s decision. In its internal review decision dated 11 December 2024, Tusla affirmed its original decision. On the same date, the applicant applied to this Office for a review of the decision.
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 to the comments made by the applicant in the course of his correspondence with Tusla and in his application to this Office. 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.
This review is solely concerned with whether Tusla was justified, under sections 31(1)(b), 37(1) and 37(7) of the FOI Act, in redacting certain material from the records sought by the applicant.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, 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 record at issue, and its content, is limited.
Secondly, section 18 of the FOI Act provides that, if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Thirdly, it is also important to note when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the legislation places no restrictions on the use to which released records may be put.
The records at issue
Tusla identified 24 pages of records relevant to the applicant’s FOI request. Each of the pages was released to the applicant with material redacted, with each redaction being marked as having been made pursuant to sections 31(1)(b), 37(1), and/or 37(7) of the FOI Act. Essentially, the 24 pages of records at issue comprise a number of social work and court reports, minutes of social work case conference meetings, solicitors’ and doctors’ letters and official court documents (warrants and orders) in relation to the subject matter of the FOI request. In addition, a number of the pages comprise handwritten notes of court attendances and written notes by members of a number of state agencies. The records date from between June 1992 and April 1993.
Section 31(1)(b)
Tusla relied on section 31(1)(b) of the FOI Act to redact material from pages 1-2, 4-11, 13, 15-16, 20-21, 23-24 of the records at issue. Section 31(1)(b) provides that an FOI body shall refuse access to records the release of which would constitute a contempt of court. This provision of the FOI Act is mandatory – in other words, if it applies to the records at issue, the FOI body is obliged to refuse access to the records.
Contempt of court can arise in a number of ways. The general position of this Office in relation to contempt of court was set down in our previous decision in Case 070332, in which the then-Commissioner stated that her understanding was that, in order for contempt of court to have occurred, a party would have to contravene a court order or undertaking made to a court, commit an act of resistance to the court or engage in conduct liable to prejudice the trial of an accused person.
It is of relevance to this case that the in camera rule provides 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. It applies to various proceedings including certain family law proceedings and certain proceedings involving minors. IT should be noted 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 the case of L. K. v The Information Commissioner [2013] IEHC 373, the High Court considered the question of the in camera rule. In this case, 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.”
In submissions made by Tusla in the course of this review, it argued that the redactions it had made to the record were justified under section 31(1)(b) on the basis that the redacted material comprised references to court hearings, safety orders and court reports which fell under the in camera rule. Tusla noted that proceedings that are conducted under the in camera rule were typically subject to strict confidentiality, as disclosure could undermine the authority of the court or violate legal obligations. Tusla further noted that the rule is often applied in cases involving sensitive matters, such as family matters, personal privacy, or the protection of vulnerable individuals (such as minors). Tusla stated that the rule applies to proceedings in respect of which there was a statutory requirement that they be held in camera, and argued that such proceedings were held in private, with the court closed to the public. Tusla argued that, if it were to release information that was submitted within the in camera court setting, or information that comprised recommendations emanating from such proceedings, it would find itself in contempt of court. In this manner, argued Tusla, section 31(1)(b) was applicable to the information it had redacted from the records. Tusla went on to note that the specific information it had redacted from the records included references to court hearings and orders, reports prepared for court, references to various court orders and solicitors’ letters in relation to same, and discussions and notes regarding a court case and associated court orders.
In his application to this Office for a review of Tusla’s decision, the applicant did not directly address Tusla’s reliance on section 31(1)(b) of the FOI Act. He did state that he wished to access unredacted records relating to decisions made that related to the subject matter of the FOI request. I would accept that such decisions are among the material redacted by Tusla pursuant to section 31(1)(b).
I have reviewed the material that was withheld by Tusla under section 31(1)(b) of the FOI Act, and have considered the arguments of both parties. Essentially, Tusla has redacted any reference to the relevant court proceedings from the records, in addition to any details emanating from court directions. While it is clear from the records that the proceedings in question related to the applicant when he was a minor, this is not determinative in relation to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).
Having reviewed the information in the records that were withheld by Tusla on the basis of section 31(1)(b), I am satisfied that they relate to court proceedings held in camera. This is the case in circumstances where the relevant court proceedings were family law proceedings which were concerned with the care of a minor. I am not aware of any judicial authority regarding the disclosure of information regarding the relevant proceedings. I accept that disclosure under the FOI Act would amount to a contempt of court. Accordingly, I find that Tusla was justified in withholding the parts of the records that it redacted pursuant to section 31(1)(b) of the FOI Act.
I note that Tusla also cited section 37 of the FOI Act in relation to certain redactions which I have found to be exempt from release under section 31(1)(b). In particular, Tusla relied on both sections 31(1)(b) and 37 to withhold the following information in the records:
• the fifth redaction on page 1
• the first redaction on page 2
• the fourth redaction on page 8
• the first redaction on page 9
• the first redaction on page 10
• the sixth and seventh redactions on page 11
• the first redaction on page 15
• the eighth redaction on page 16
• the first redaction on page 20
• the first redaction on page 23
• the seventh redaction on page 24.
Having found this material to be exempt from release under section 31(1)(b) of the FOI Act, I am not required to examine whether it is also exempt under section 37. It remains for me to examine the extent to which Tusla was justified in making the remaining redactions to the records under section 37.
Section 37
Tusla relied on section 37(1) of the FOI Act, in conjunction with section 37(7), to redact certain information from the records. In particular, Tusla cited section 37(1) as a basis for redactions made to pages 1-3, 8-9, 11-12, 14-17, and 22-24 of the records. Tusla also cited section 37(7) in relation to information in the same pages, as well as additional material that it withheld from page 10 of the records.
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 without prejudice to the generality of the foregoing definition which is personal without prejudice to the generality of the foregoing definition, including, but not limited to; (i) information relating to the educational, medical, psychiatric or psychological affairs of the individual; (iii), information relating to the employment or the employment history of the individual; (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual; and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.
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).
In its submissions regarding section 37(1), Tusla stated that it applied to the redactions it had made to the records on the basis that the withheld material was the personal information of individuals other than the applicant, and identified the individuals to whom each piece of redacted information related. Given the requirements of section 25(3) of the FOI Act, as set out above, I am limited in the extent to which I can describe this information. It must suffice for me to say that I have examined same and accept that the redactions made to the records are of the personal information of third parties, and in particular comprise information that falls within the categories of personal information, set out in section 2 of the FOI Act, that I have outlined above.
In relation to section 37(7), Tusla set out the basis on which it considered that the information at issue was joint personal information, and identified the manner in which it related to both the applicant and to the other relevant individual(s). I have examined the material that Tusla has withheld under section 37(7). Again, pursuant to section 25(3), I am limited in the extent to which I can discuss the nature of the information. However, I can say that, given the nature of the records, I am satisfied that Tusla correctly applied section 37(7) to those parts of the records that contain the joint personal information of the applicant and other identifiable third parties. It should be noted that, in his application to this Office, the applicant indicated that he wished to receive information related to himself and that the personal information of other individuals could be withheld. I wish to note in this regard that I accept that the information in the records in respect of which Tusla applied section 37(7) is material that comprises the personal information of the applicant that is inextricably linked to the personal information of other individuals – in other words, where it is not practicable to remove the personal information of other individuals in the manner suggested by the applicant (the approach of this Office to section 18 of the FOI Act, which I have outlined above, refers). I accept that section 37(7) of the FOI Act applies on this basis.
In relation to the information in the records that I have identified above as either personal to individuals other than the applicant, 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) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) of the FOI Act provides that, subject to the legislation, 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. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the legislation places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions provided for under the FOI Act, such as under sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a), any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) which provides that in performing any functions under the FOI Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, 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 this case, the applicant did not identify any specific public interest factors in favour of the release of the records at issue that might outweigh, on balance, the privacy rights of the individuals to whom the personal information in the records relates. In his application to this Office for a review of Tusla’s decision, I consider that the applicant set out what is essentially a private interest in the release of the information at issue.
In its submissions, Tusla identified a number of public interest factors both for and against the release of the relevant information. In terms of public interest factors in favour of release, Tusla identified the public interest in openness, transparency, and accountability in the manner in which it performed its functions, as well as the public interest in members of the public knowing that the information held by public bodies about them, or those they represent, is accurate, and the public interest in members of the public exercising their rights under the FOI Act. Against this, Tusla identified the strong public interest in maintaining the right to privacy of the privacy of the relevant individuals, and argued that on balance this outweighed the public interest factors in favour of disclosure.
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 FOI 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
While I accept that the release of the records at issue would serve to further the public interest factors identified by Tusla in favour of release, at the same time the information in records that I have identified as subject to sections 37(1) and 37(7) is of an inherently sensitive and private nature and I must regard its release as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the individuals to whom the personal information relates. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that Tusla was justified, under section 37(1) of the FOI Act, in conjunction with section 37(7), in refusing access to the information in the records that I have identified as comprising personal information.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision. I find that Tusla was justified under sections 31(1)(b) and 37 of the FOI Act in withholding the information that it redacted from the records.
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.
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Neill Dougan
Investigator