Decision
Mr Y and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-143641-D5K0X9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143641-D5K0X9
Published on
Whether Tusla was justified, under section 37 of the FOI Act, in refusing certain information relating to a child welfare referral on the basis that it contains personal information of third parties
16 April 2024
In an FOI request dated 10 April 2023, the applicant sought access to records relating to a family matter that was the subject of a report made to Tusla. In a decision dated 24 April 2023, Tusla part-granted the applicant’s request, redacting certain information under section 37 of the FOI Act on the ground that it was either third party personal information or joint personal information within the meaning of section 37(7) of the FOI Act. On 21 May 2023, the applicant sought an internal review and on 9 June 2023 Tusla affirmed its original decision. On 5 November 2023, the applicant applied to this Office for a review of Tusla’s 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 correspondence outlined above and to the submissions made by Tusla in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether Tusla was justified in refusing access to the information it withheld from the records at issue under section 37(1) of the FOI Act.
Before I address the substantive issues arising, I wish to make a number of preliminary comments.
First, 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 extent to which I can describe the contents of the information refused by Tusla in this case is limited.
Second, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). 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.
Finally, I note that in his FOI request to Tusla the applicant sought other information about his daughter, including records of her attendance at Child and Adolescent Mental Health Services (CAMHS) and about her school attendance. Tusla’s decisions in this case did not address these matters and the applicant did not refer to this omission in either his request for internal review or in his application to this Office. This Office made inquiries with Tusla about these matters. Tusla said that CAMHS records, if any exist, would be held by the HSE, and that it had made inquiries with its Education Welfare department about school attendance records. It said that department does not have any relevant records. While Tusla acknowledged that these matters should have been addressed in its correspondence with the applicant, I would remind Tusla of its obligations under the FOI Act to assist applicants with making FOI requests, notifying them where it is of the view another FOI body would hold the records, and informing applicants of their rights under the FOI Act where relevant. It is open to the applicant to revert to Tusla in relation to the school attendance matter and to make a new FOI request to the HSE in relation to the CAMHS records, should he wish.
The records at issue in this case comprise 16 pages of records about a referral to Tusla concerning the applicant and his daughter. Tusla redacted information in records 1 – 10, 12, and 14 – 15 under section 37 of the Act. For the benefit of the applicant, I should state that the fact that a requester may be aware of the nature of the information withheld does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
Section 37
Section 37(1) and 37(7)
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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(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. This is commonly known as joint personal information.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the foregoing definition, constitute personal information.
While I am required, under section 25(3) of the Act, to take all reasonable precautions during a review to prevent the disclosure of exempt information, I believe I am not in breach of section 25(3) by noting that the information refused by Tusla includes details provided to it in relation to a child welfare referral that includes information relating to individuals other than the applicant and his daughter. This includes the names, contact details and other personal information about those individuals, that is exempt under section 37(1), and I find accordingly.
While the information refused by Tusla also includes references to the applicant and/or his daughter, I am satisfied that any such information that has been withheld is inextricably linked to that of identifiable third parties, which is regarded as joint personal information under section 37(7) of the Act. Even if it were feasible to separate out occasional words relating solely to the applicant, and/or his daughter, I would not consider it to be in keeping with the Commissioner’s approach to section 18 to grant access to further parts of the records with such third party information redacted. Accordingly, I find the withheld parts of records to be exempt information under section 37(1) of the FOI Act. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I examine below.
Section 37(2)
Section 37(2)(a) provides for the grant of access to personal information relating to the requester. I am satisfied that no further information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). While the records contain joint personal information, as outlined above, I do not consider that personal information relating to the applicant can be separated from that of other individuals. The records also contain personal information relating entirely to identifiable individuals other than the applicant. I am also satisfied that the remaining circumstances set out in section 37(2) do not arise. That is to say, the third parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5)
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. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find 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) provides that, subject to the Act, 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 an 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 Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, which are not relevant here, FOI is not about granting access to information to particular individuals only. Furthermore, 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) of the Act, 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 individual(s) concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the 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 comments of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (‘the eNet judgment’). In the relevant part, 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.
While the applicant made no specific arguments about the public interest in release of the records at issue in this case, it seems to me that his reasons for seeking access to the records are reflective of a public interest in ensuring that appropriate procedures are followed by Tusla in handling cases of this nature. In my view, releasing the information refused by Tusla would provide very limited additional insight into how it dealt with the child welfare referral it received. I note that the records released to the applicant show that he was contacted by a social care worker to discuss the referral and that he was informed that the referral to Tusla social work service was closed.
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 un-enumerated 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).
Having considered the matter, it is not apparent to me how the release of personal information relating to individuals other than the applicant, effectively, or at least potentially, to the world at large, would enhance transparency around the manner in which Tusla carries out it functions. In my view, Tusla has attempted to strike a balance in this case between serving the public interest in transparency and accountability, and the public interest in protecting the privacy rights of the third parties. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of its release that, on balance, outweigh the rights to privacy of the individuals to whom it relates. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8)
Finally, section 37(8) of the Act provides a right of access to personal information relating to an individual who has not attained full age by his/her parent or guardian where access to those records would, having regard to all the circumstances, be in the individual’s best interests. However, neither section 37(8) nor the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016) that underpin this provision in the Act provide a basis for releasing records, or parts of records, which contain personal information relating to a third party. As I have outlined above, while some of the information refused by Tusla contains information about the applicant’s daughter, this information is inextricably linked with the personal information of third parties. That is to say that the information does not relate solely to the applicant’s daughter. Accordingly, I do not need to consider whether this information falls to be released under the Regulations.
Consequently, I find that Tusla was justified in refusing access to the withheld information at issue under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision.
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.
Richard Crowley, Investigator