Decision
Mr H and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-146219-R0W0H5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146219-R0W0H5
Published on
Whether Tusla was justified in refusing access to further information in a “disruption report” related to children placed in the emergency care of the applicant
6 June 2024
In a request dated 21 September 2023, the applicant sought access to a copy of a “disruption report” dated March 2022. The report in question related to two children who the applicant and his wife had fostered for the period of time which the report relates to. In a decision dated 9 October 2023, Tusla granted partial access to the report in question. Tusla withheld information in the report related to the children who had been the subject of the report, their parents and one youth worker. It stated that the record in question contained personal information of other individuals who are identifiable from the records and that this information was being refused under section 37(1) and 37(7) of the FOI Act. The applicant submitted a request for internal review on 1 November 2023. In his request, the applicant argued that the information in the document has already been read out to them by an assessing social worker who was given access to the report, he argued that there is a high level of public interest in the public knowing that the information held on them is accurate, as they do not believe the information in the report is accurate.
On 16 November 2023, Tusla issued its internal review decision which varied the original decision by releasing additional information from the record. It upheld the decision to refuse access to parts of the records as the information relates to personal information, and that Tusla considered that there was no case for a breach of the privacy rights of third parties in this instance. On 16 November 2023, the applicant applied to this Office for a review of Tusla’s decision he made a number of arguments in support of his application which will be explored later in 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 the public body, and the arguments raised by the applicant in his application to this Office. 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 parts of the “disruption report” under section 37(1) and 37(7) of the FOI Act.
Before I address the substantive issues arising in this case, I would like to make some preliminary comments.
First, section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.
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, it is important to clarify that 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 mechanism with respect to actions taken by FOI bodies.
Section 37 of the FOI Act
Section 37(1) and 37(7)
Section 37(1) provides, subject to the other provisions of the section for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. This does not apply where the information 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 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 including but not limited to; (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.
As stated above, the record at issue comprises a disruption report. 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 report in question is a social work report which comprises of an analysis relating to the disruption in foster care provided by the applicant and his wife to two young boys who were placed into their care on an emergency basis. The report assesses a number of factors in relation to the carer’s themselves and specifically the relationship with one of the boys placed into their care. The report includes names, birthdays, and details relating to both children’s history in care and with their parents. The applicant has stated that the report has previously been read out to himself and his wife by the relevant social worker. For the benefit of the applicant, I should state that the fact that the 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.
The applicant has expressed his dissatisfaction that large elements of the report have been redacted. He has sought clarity on whether the information redacted from the report is only “the names and personal information of third parties.” He states that he is aware that the report contains the names of the boys whom he provided care for, but has sought that the remainder be disclosed. Specifically, he has requested to release parts of the records by removing the names of third parties and replacing it with Boy A and Boy B and has argued that this would enable the protection of the privacy rights of the third parties to whom the record relates.
In the submissions provided by Tusla, it has argued that it is committed to being a transparent and accountable organisation. It states that a meeting took place with the applicants and the allocated social workers where the Disruption Report was read out to them and discussed, it states that this is following numerous meetings and discussions between the social work department and the applicants pertaining to this placement. It states that while the content of the report is known to the applicants, this does not alter the fact that the information is personal information of individuals other than the applicants. It states that the report was created in the name of the minors and forms part of their care history. It argues that the record contains extremely sensitive and personal information pertaining to the minors as well as their birth parents and given that release under FOI is considered to be release to the world at large, the decision maker felt that the report meets the threshold required for protection. It states that the decision maker strongly contests the applicants view that not releasing the report could be detrimental to the minors, and that the decision maker is actually of the view that publication of the records could prove detrimental to the minors and their parents in this case and breach their right to privacy.
Tusla also states that removing the names of the two minors and replacing them with Boy and Boy B or other such anonymizations would not protect the third parties from being identifiable and would be a huge breach of their right to have their personal information protected under the Act. It argued that the foster carers only had one placement and hence the third parties in the report would be easily identifiable. It is the opinion of the decision maker that disclosure of the record by just anonymising names would involve the disclosure of personal information of all third parties identified in the record which in the opinion of the decision maker is of an inherently private and sensitive nature, relating to children in the care of TUSLA.
While the information withheld by Tusla also include references to the applicant and his wife. I am satisfied that any such information withheld is inextricably linked to that of identifiable third parties i.e the minors or their parents, 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 wife, 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 the record to be exempt under section 37(1) of the FOI Act. However, that is not the end of the matter as section 37(1) is subject to other provisions of section 37, which I examine below.
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) apply in this case. I have already outlined the provisions of section 37(7). While the records contain joint personal information, including information relating to the applicant, 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 the 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.
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.
The applicant has expressed dissatisfaction with the public interest balancing test carried out by Tusla. He states that in his belief there has been a lack of transparency and that the information being withheld would enable accountability of a public body. He states that he has been informed by social workers that his and his wife’s assessment to become long term foster carers has been deferred as a result of the contents of the report, he argues that without having a full copy of the report, it is not possible to challenge the accuracy of the report. He states that he believes there is a public interest in being able to bring such challenges in the name of openness and transparency. He states that withholding information allows the authors act with impunity, and that it is not beneficial to the applicant as this report could mean that the applicants may not be accepted as foster carers again, he further argues that it could also be detrimental to the two young boys in question, and that they feel that the public interest in release of the report outweighs the right to privacy.
In the submissions which Tusla provided, it states that it considered that arguments for release in the public interest did not outweigh the significant public interest in protecting the right to privacy of any of the individuals to whom the record relates. It states that in addition, it was not deemed that the individuals concerned would benefit from the release of their personal information to a third party. Tusla also advised that the Child welfare and protection policy within Tusla is based on legal framework provided by the Child Care Act 1991, the Children First Act 2015 and the Child and Family Agency Act 2013 (s.9). It argues that the principles in this framework acknowledge that the best interests of the child should be paramount in all decision making processes. It states that this is particularly important, given the nature of the services which are provided by Tusla and accessed by vulnerable individuals
Having considered the public interest matters put forward by both the applicant and the public body, it seems to me that although the release of the report may give the applicant insight into the issues raised concerning the assessment to become foster carers, it would also constitute a large invasion of the both the minors and their birth parents’ privacy. The reports appear to be held in the minor’s own right, and it is also clear that Tusla has aimed to strike a balance in terms of transparency by organising a meeting with the applicants and reading the report to them. Notwithstanding this, the fact that the content of the report is known to the applicant, does not alter the fact that there is a large amount of sensitive personal information relating to other third parties. I consider that if the information relating to either the minors or their parents were placed into the public domain it would constitute a significant breach of their privacy rights. The applicant argues that the fact that there has been no right of reply to the report could be detrimental not only to the applicant’s but to both of the minors, while I appreciate why the applicant may be frustrated at potentially being unable to challenge elements of the report. I cannot see why protecting the private information of the other third parties could in any way be deemed detrimental to their interests, particularly considering the type of information which has been withheld. I also consider that the removal of the minor’s names in favour of Boy A and Boy B would not serve to protect the identities of the minors particularly considering the applicants have only had one foster care placement.
Having examined the record closely and considered the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific redacted information that, on balance, outweighs the right of privacy of the individuals to whom the information relates. I find therefore that section 37(5)(a) does not apply.
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 in refusing access to the release of any further information contained in the report on the basis that it is exempt under section 37(1) 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.
Rachael Lord
Investigator