Decision
Mr. Y & Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-154801-X1V1X5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154801-X1V1X5
Published on
Whether Tusla was justified in refusing access, under sections 37(1) and 15(1)(a), to certain records concerning the applicant’s family and emails concerning his family sent to or from the email accounts of a list of named Tusla staff/contractors
30 October 2025
In a request dated 14 October 2024, the applicant sought access to (i) all records concerning his family from 1 March 2024 onwards, to include notes written by staff as well as records on the filing system and (ii) all emails concerning his family sent to or from the email accounts of a list of 30 named staff/contractors at any time in the past. He said the list of 30 names comprised the names of individuals who had recently accessed his family’s data.
In its decision dated 15 November 2024, Tusla granted access to 220 pages of records coming within the scope of the second part of the applicant’s request, with the redaction of certain information under section 37(1) of the Act. The applicant sought an internal review of that decision. He said the first part of his request had not been responded to. He said the majority of the records captured by the second part of his request had not been provided and suggested that Tusla run a ‘mailmeter' type search on the archive files for each named individual, He further argued that section 37 of the Act had been used incorrectly, referencing CPU Guidance that information relating to a public servant acting in an official capacity is not considered to be personal information. On 11 December 2024, Tusla affirmed its original decision. It said all areas and individuals were liaised with and returned all email threads with regards to the applicant and his family which had been collated, processed and released under FOI. It said the emails released did not include all 30 people listed due to the fact that not everyone that would have accessed his family’s profile on the relevant system would have had reason to send an email regarding him and his family.
On 18 December 2024, the applicant applied to this Office for a review of Tusla’s decision. He said Tusla did not make any efforts to check what records it had in various parts of the organisation and that it did not appear to have undertaken the normal searches that an FOI body would undertake for a request such as his.
During the course of the review, Tusla said in its submissions that it accepted the applicant’s position that additional searches were not conducted across the Agency in respect of the first part of his request. It said it retrospectively searched for further information on its Case Management System (TCM), retrieving 25 further records which were processed and released to the applicant on 31 July 2025. In respect of the second part, it provided details of searches undertaken. It added that it conducted retrospective searches and three staff members submitted emails that were omitted at the time. It said those emails were processed along with the 25 other records found.
This Office’s Investigator informed the applicant of the details of Tusla’s submisisons and invited him to make submissions. In his response, among other things the applicant said he was contacted by Tusla regarding his request and that he provided it with additional information in order to assist it. He said he suggested that it would be better to simply start again and issue a fresh decision on the request. Following further queries from the Investigator, Tusla said it had written to the applicant to outline the scope of a fresh request it was proposing to process. The Investigator wrote to the applicant to ask if he was agreeable to withdrawing his application for review based on Tusla’s commitment to process a fresh request but has received no response to date. Accordingly, 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 both parties during the review. I have also had regard to the contents of the records that were released with redactions. I have decided to conclude this review by way of a formal, binding decision.
The applicant’s position is that Tusla did not identify all relevant records coming within the scope of his request. Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, the scope of this review is concerned with whether Tusla was justified in refusing access, under section 15(1)(a) of the Act, to further records coming within the scope of the applicant’s request apart from those already released. It is also concerned with whether Tusla was justified in redacting certain information from a number of the released records under section 37(1) of the Act.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the records management practices of the FOI body, insofar as those practices relate to the records in question.
Both Tusla and the applicant made submissions to this Office in respect of the searches undertaken for relevant records and of the possible existence of further relevant records. However, I do not propose to engage with those submissions in detail in this decision as, in light of Tusla’s acknowledgement that it did not carry out adequate searches and its offer to process a fresh request, I am satisfied that Tusla was not justified in refusing to grant access, under section 15(1)(a), to any further relevant records other than those already released.
In the circumstances, I consider the most appropriate course of action is to annul that part of Tusla’s decision, the effect of which is that it must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with Tusla’s decision. I would add that the applicant’s request is potentially quite broad, in seeking all records concerning his family. It seems to me that there is potential for the parties to engage on the matter to ensure that the scope of the request is clear and agreed before it is processed afresh.
Section 37
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information concerned 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 (commonly known as joint personal information). Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, the request shall be refused pursuant to section 37(7) if that personal information is inextricably linked to personal information relating to parties other than the applicant. Section 37(1) is subject to sections 37(2)(b) to (e), 37(5) and 37(8).
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 that is personal information for the purposes of the Act, including (iii) information relating to the employment or 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 (xiv) the views or opinions of another person about the individual. It is important to note that the fact that a requester may be aware of the nature of the information at issue or may have even provided some or all of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 provides that in a case where the individual holds or held a position as a member of the staff of an FOI body, personal information does not include the name of the individual or information relating to the position or its functions or the terms upon and subject to which the individual occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,
The redacted information comprises the names of staff members of a school, the name of a member of the board of directors of the school, the mobile phone numbers of Tusla and school staff, details of leave or career breaks concerning Tusla staff, school staff and social workers, a password and link to a Tusla TCM document, names of Gardai, references to accusations made against staff members of the school and references to other third parties.
The applicant asserted that Tusla had misapplied section 37 of the Act. He said Tusla redacted the names of public servants who work for other public bodies which is not permitted under the Act and its assertion that other bodies are only partially covered by the FOI Act is not correct. He said Tusla has incorrectly applied this section concerning its own employees, Gardai and teaching staff paid directly by the Department of Education.
In its submissions Tusla said the information relates to people other than the requester and was redacted as either personal information under section 37(1) or joint personal information under section 37(7). It said no third party has consented to the disclosure of the information to the applicant and consent was not sought. It said the applicant has not provided consent on behalf of any other third party and records have been protected where they contain personal information in relation to additional third parties.
While I am required, under section 25(3) of the FOI Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt information, I believe I am not in breach of that provision by stating that the redacted information concerning the school staff members is covered by categories of information (iii), (iv) and (xiv) that is personal information for the purposes of the Act in section 2.
I am satisfied that section 37(1) applies to the mobile phone numbers of the various staff members contained in the records. In making this finding, I am cognisant of the fact that many staff commonly use their own personal phone numbers in the course of their official functions. I am also satisfied that section 37(1) applies to details of leave or career breaks concerning individuals.
On the matter of the names of members of AGS, it is important to state at the outset that AGS is a partially included body for FOI purposes. Section 6(2) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act. Schedule 1, Part 1(n) provides that AGS is not a public body for the purposes of the FOI Act other than in relation to administrative records relating to human resources, or finance or procurement matters. In other words, AGS is only subject to the Act insofar as it holds records that relate to administrative matters concerning human resources, finance, or procurement.
The FOI Act does not define the term “administrative record” as provided for in Part 1(n) apart from stating that it relates to human resources, or finance or procurement matters. This Office considers the term to cover records relating to the administration of the body, as opposed to say, records relating to its operational matters or core functions. In the case of a number of specified public bodies, the right of access afforded by the FOI Act is restricted to records relating to their general administration. We consider the term general administration to refer to records which have to do with the management of a public body such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. In the case of AGS, the category of administrative records to which a right of access applies is limited further; they must also concern human resources, finance, or procurement matters.
In the relevant records, the names of staff members of AGS are contained in an email from Tusla in the context of the performance of the members’ operational duties and an email from the applicant to Tusla referencing information provided by a member of AGS to a Tusla staff member contained in records released to the applicant under GDPR. As the names were recorded in the context of the performance of the AGS members’ operational duties, I am satisfied that the members cannot be regard as staff members of an FOI body in respect of such records and I find, therefore, that the exclusion to the definition of personal information set out in Paragraph (I) does not apply. I find, therefore, that the names of the AGS staff members comprises personal information and that section 37(1) applies.
On the matter of the redaction of the name of a member of the board of directors, I note this Office’s decision in Ms ABY and the Department of Education and Science [2000] IEIC 98169 which states:
“It is clear that neither teachers nor board members are employed by the Department. Therefore, the only questions which arise in relation to this aspect of the matter is whether boards of management or teachers provide services to the Department under a contract for services. The Department has argued that as Chairpersons or other members of boards are not remunerated by the Department for their roles they are not acting as contractors for the Department. I accept this to be the case.”
As board of management members are not remunerated by an FOI body and are not acting as contractors for an FOI body, I find that section 37(1) applies to their names.
Having reviewed the records, I am satisfied that all of the information withheld comprises either personal information relating to other third parties or joint personal information relating to the applicant and other third parties. I find, therefore, that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2) and (5). Accordingly, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the information at issue.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if;
a) the information concerned relates to the requester concerned,
b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
c) information of the same kind as that available in the record in respect of individuals generally or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before it being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
The purpose of section 37(2)(a) is to ensure that section 37(1) cannot apply to information relating solely to the requester. I am satisfied that the withheld information in the records that relates to the applicant is inextricably linked with personal information relating to third party individuals. I am satisfied, therefore, that section 37(2)(a) does not apply. No argument has been made that any of the circumstances outlined above at subsections (b) to (e) are relevant in this case, nor do I consider any to apply.
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. No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it 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 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 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, 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) 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 individuals 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 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 its submissions, Tusla said it considered the following factors in favour of release:
• There is a public interest in openness, transparency and accountability in the manner in which Tusla performs its functions
• There is a public interest in members of the public knowing that the information held by public bodies about them, or those they represent is accurate
• There is a public interest in members of the public exercising their rights under the FOI Act
It considered the following factors against release:
• Weighing against the public interest in granting access to the records concerned is the strong public interest in protecting the right to privacy
• The public interest in protecting privacy rights is reflected 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)
• The right to privacy also has a constitutional dimension in Ireland
Tusla said that, having regard to all the circumstances, it did not consider that the public interest in this instance in the release of the withheld information outweighed, on balance, the significant public interest in protecting the rights of any individuals to whom the information relates.
The applicant has made no specific public interest arguments in respect of the records redacted under section 37. He simply said that that Tusla had misapplied section 37 of the Act and had incorrectly redacted the names of public servants who work for other public bodies, which I have addressed above. I accept that the applicant has an interest in being able to access information relating to himself and his family which is held by the FOI body. However, it seems to me that such an interest is a private one rather than a public one.
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 it 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 some of the information is not of a particularly sensitive nature, I must have regard to the fact that the release of the records must be regarded, in effect, as release to the world at large.
It seems to me that the public interest in ensuring openness and accountability in relation to Tusla's actions concerning the applicant has been served to a large degree by the release of the vast majority of the records at issue. It is not apparent to me that release of the withheld information would further enhance the accountability and transparency of Tusla to any significant extent.
Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information at issue outweighs, on balance, the privacy rights of the relevant third parties. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary Tusla’s decision. I affirm Tusla’s decision to refuse access, under section37(1) of the Act, to the information redacted from the records released to the applicant. I annul its effective refusal, under section 15(1)(a), to grant access to any further relevant records and I direct it to consider afresh the applicant’s request for further relevant 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.
Stephen Rafferty
Senior Investigator