Decision
Ms K and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-138272-J0N1S1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-138272-J0N1S1
Published on
Whether Tusla was justified in refusing access to information in records relating to the applicant
9 November 2023
In a request which was validly received on 24 January 2023, the applicant sought access to her casefiles with Tusla from 13 March 2012 to the date of her request.
In a decision dated 31 January 2023 Tusla indicated that 139 pages fell within the scope of the applicant’s request. It part-granted access to these records, refusing access to parts of the records on the basis of sections 31(1), 37(1), 37(7) and 42(m)(i) of the FOI Act.
On 20 February 2023 the applicant sought an internal review of this decision. On 11 May 2023 the internal reviewer varied the original decision and released certain additional information which had been refused on the basis of section 31(1).
On 15 May 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 applicant’s comments in her application for review and to the submissions made by Tusla in support of its decision. 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 in refusing, under sections 31(1), 37(1), 37(7) and 42(m)(l) of the FOI Act, the applicant’s request for access to her casefile.
Before I consider the substantive issues arising, I would like to make three 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 description I can give of the records at issue and of the reasons for my findings are limited in this case.
Secondly, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Our role is confined to a consideration of the decision made on the FOI request.
Finally, 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.
Section 31(1)(b)
Tusla has relied on section 31(1)(b) to refuse access to pages 81-135 of the relevant records. It has also refused access to certain information on pages 136-137 on the same basis.
Section 31(1)(b) provides that a head shall refuse to grant an FOI request if the record concerned is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court. Section 31(1)(b) does not require consideration of the public interest.
In a submission to this Office, the applicant argued that the records relate to the manner in which her two children were taken into care against her wishes and this should be a materially relevant factor.
In its submission to this Office, Tusla said that the nature of childcare proceedings is such that they are held in camera to protect the individuals before the court, in circumstances where the court is closed to the public. Its position is that section 31(1)(b) applies as the disclosure of the documents would constitute contempt of court.
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 certain proceedings including certain family law proceedings and certain proceedings involving minors. In many cases the requester seeking access to the records may have been a party to the in camera proceedings. However, the identity of the requester is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).
Having reviewed those parts of the records which have been refused on the basis of section 31(1)(b), I am satisfied that they relate to court proceedings held in camera. It is not relevant whether the applicant was a party to such proceedings or the subject of some of the records concerned.
I am not aware of any judicial authority regarding the disclosure of the records concerned. I accept that disclosure under the FOI Act would amount to a contempt of court. Accordingly, I find that section 31(1)(b) applies to pages 81-135 of the relevant records and the information which had been refused on pages 136-137 on that basis.
Section 37(1) and 37(7)
Tusla has relied on section 37(1), on occasion in conjunction with section 37(7), to refuse access to certain information in the records.
Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information, including personal information relating to a deceased individual. 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. The section does not apply where the information involved relates solely to the requester (subsection (2)(a) refers).
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).
The records in question comprise various social work reports and correspondence relating to the applicant, her children and other members of her extended family. Mindful of the provisions of section 25(3), I cannot provide a detailed description of the records. However, I can say that they generally comprise of details of the family’s engagement with social workers.
Tusla have released information relating to the applicant and her minor child but have refused access to information relating to other individuals in the records.
Having examined the withheld information, I am satisfied that it comprises either personal information relating solely to individuals other than the applicant and/or her minor child, or personal information relating to the applicant and/or her minor child that is inextricably linked to personal information relating to other identifiable individuals i.e. joint personal information. I am satisfied that the release of any additional information would involve disclosure of personal information relating to individuals other than the applicant and/or her minor child and that section 37(1) applies.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case.
Section 37(5)
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. No argument has been made that the release of the records to the applicant would benefit the other individuals, nor is it apparent to me how release would do so. 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 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, 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.
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 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.
In its submissions to this Office, Tusla said that when a person enters into a relationship with a public service such as Tusla, they are entitled to expect that information generated in that relationship is treated in confidence and remains private. I also note Tusla’s arguments which stated that it did not consider that the release of the information to a third party, would be of benefit to the individuals concerned.
In this case, while 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 other individuals, she indicated in her correspondence with this Office that she wants access to the records as she alleges that false allegations were made against her which led to her children being taken into care. While the applicant has essentially expressed a private interest for seeking access to the records, it seems to me that her reasons for seeking access to the records are reflective of a public interest in ensuring that appropriate procedures are followed in circumstances where children are being taken into care.
On the other hand, 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 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 somewhat enhance transparency around the processes and procedures in place for matters such as care orders and supervision orders for children, it seems to me that the degree of enhancement would be quite limited. On the other hand, the records at issue are of an inherently sensitive and private nature and I must regard their 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 other individuals. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, I find that the Tusla was justified in refusing access to information in the relevant records on the basis of section 37(1) and 37(7) of the FOI Act.
Section 42(m)
Tusla has relied on section 42(m)(i) to refuse access to certain information on page 2 of the records. While I am constrained by section 25(3) in how I can describe the information at issue, I can say that it relates to a complaint by a third party concerning the welfare of the applicant’s children.
Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of, the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body (or where such information is otherwise in its possession). The section is not subject to a public interest test. In other words, if the section applies, then that is the end of the matter and no right of access exists as the Act does not apply to such records.
In essence, section 42(m)(i) provides for the protection of the identity of persons who have given information in confidence in relation to the enforcement or administration of the law. We take the view that it is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the law.
For section 42(m)(i) to apply, three requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. The second is that the information must have been given in confidence, while the third is that the information must relate to the enforcement or administration of the law.
First requirement
The information redacted from the records comprise details of a person who made a complaint concerning the welfare of the applicant’s children. While the individual is not named, I am satisfied that sufficient identifying information is contained in the records, the release of which could reasonably be expected to lead to the revelation of the identity of that person. I am therefore satisfied that the first condition has been met in this case.
Second requirement
The second requirement for section 42(m) to apply is that the provider of information must have provided that information in confidence. In its submission to this Office, Tusla said it is clear from the contents of the records that the information in question was provided in confidence. It said that as a general proposition, the purpose of section 42(m)(i) is to protect the flow of information from the public which FOI bodies require to carry out their functions relating to the enforcement or administration of the law and that the disclosure of the identities of complainants could reasonably be expected to have a detrimental effect on other people giving such information to those bodies in the future.
Having examined the record, I am satisfied that, having regard to the nature of the information at issue and Tusla’s position on the matter, the information was given in confidence and I find that the second requirement has been met.
Third requirement
The third requirement is that the information provided to the FOI body relates to the enforcement or administration of the law. Tusla said that the relevant legislation in this case is the Child and Family Agency Act 2013 and the Child Care Act 1991. It said that the information provided relates to child protection concerns and under the above legislative framework Tusla is required to act in compliance with its statutory obligation to ensure the safety and welfare of children. I am satisfied that the third requirement has been met.
Having found that each of the three requirements are met, I find that Tusla was justified in refusing access to certain information on page 2 of the relevant records under section 42(m) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision. I find that it was justified in refusing access to the information in the relevant records on the basis of sections 31(1)(b), 37(1) and 42(m) of the FOI Act.
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.
Mary Connery, Investigator