Decision
Ms R and TUSLA: Child and Family Agency
From Office of the Information Commissioner (OIC)
Case number: 160225
Published on
From Office of the Information Commissioner (OIC)
Case number: 160225
Published on
Whether Tusla was justified in its decision to refuse a request to which section 38 of the FOI Act applies, concerning access to records relating to a third party
6 July 2016
This review arises from a decision made by Tusla to refuse access to records following a request to which section 38 of the FOI Act applies. Section 38 applies to cases where the public body has decided that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or personal information about third parties, respectively) but that the record(s) should be released in the public interest.
Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.
On 11 December 2015, the applicant wrote to Tusla and sought access to records relating to a third party. Tusla formed the opinion that the request was one to which section 38 of the FOI Act applied and undertook a process of consultation with the third party. Tusla formally wrote to the third party on 11 April 2016 and stated that it was considering the release of certain information. The third party was invited to submit any concerns or views about the possible release of this information. The third party made a submission to Tusla on 4 May 2016, following which, by letter dated 9 May 2016, Tusla decided to refuse access to the requested records.
The applicant sought a review by this Office of Tusla's decision on 18 May 2016.
As I have outlined above, Tusla formed the view that the request was one to which section 38 of the FOI Act applied and undertook a process of consultation with the relevant third party in accordance with the provisions of section 38(2) of the FOI Act. Section 38(2) provides that the head of a public body shall, not later than two weeks after the receipt of the request, notify any relevant third parties:
"(i) of the request and that, apart from this section, it falls, in the public interest, to be granted,
(ii) that the person may, not later than 3 weeks after the receipt of the notification, make submissions to the head in relation to the request, and
(iii) that the head will consider any such submissions before deciding whether to grant or refuse to grant the request."
In this case, the original request was received by Tusla on 14 December 2015. However, from the records received by this Office, it is clear that Tusla did not formally contact the affected third party, as provided for at section 38(2), until 11 April 2016, some 17 weeks after receipt of the request from the applicant. Under section 38(2), the third party should have been notified by 30 December 2015 at the latest.
It is clear from the above that the section 38 requirements were not applied correctly in this case. I am concerned at the significant delay that has arisen for the applicant in receiving a binding determination on her request as a result of Tusla's failure to correctly apply those requirements. While I am reluctant to take any action that adds further to that delay, I do not consider that the Commissioner has jurisdiction to conduct a review on a decision to which section 38 applies, where the statutory time limits have not been adhered to. Regretfully, it is my view that the decision of the Department should be annulled and I find accordingly.
The effect of this is that the section 38 aspects of the original decision must be put aside and Tusla will have to conduct a new, first instance decision-making process in which it can apply the section 38 requirements of the Act correctly. Finally, I would like to remind Tusla of the step by step guide to the application of section 38 provided by the Central Policy Unit (CPU) at the Department of Public Expenditure and Reform, which is available at www.foi.gov.ie.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of Tusla in the matter and direct it to conduct a new decision making process which complies with the requirements of Section 38 of the Act.
Should a valid application be received from any party in relation to the new decision, this Office will endeavour to process that application as quickly as possible and in consideration of the interests of all affected parties.
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.
Stephen Rafferty
Senior Investigator