Cinneadh
Mr. X & Tusla
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-155089-R4G1C1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-155089-R4G1C1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Tusla was justified in refusing access to certain information in records relating to the applicant, his son and his late wife on the basis of sections 31(1)(a), 31(1)(b) and 37(1) of the FOI Act
15 October 2025
On 28 August 2024 the applicant sought access to records relating to himself as well as his son and his late wife. As part of his application to Tusla, the applicant supplied written consent from his son consenting to the release of information relating to him to his father.
On 8 November 2024 the original decision-maker issued his decision. A total of 354 pages of records were identified as falling within the scope of the applicant’s request. Tusla part-granted access to these records, with certain information refused on the basis of sections 31(1)(a), 31(1)(b) and 37(1) of the Act.
On 21 November 2024 the applicant sought an internal review of this decision and on 13 December 2024 the internal reviewer affirmed the original decision. Finally, on 17 January 2025 the applicant applied to this Office for a review of this decision.
In the course of the review by this Office, Tusla reconsidered its position with respect to certain information in the relevant records. Therefore, on 29 September 2025, Tusla re-issued the records to the applicant with further information now released to him. Tusla also provided the applicant with a new schedule which clearly indicated the basis on which it had sought to refuse access to the remaining information in the relevant records. More particularly, Tusla indicated that it was still seeking to rely on section 31(1)(a), 31(1)(b) and 37(1) to refuse access to the remaining withheld information.
The applicant, in correspondence dated 30 September 2025, informed this Office that despite the release of further information to him, he wished this Office to continue its review.
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 his 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.
In light of the most recent release of records to the applicant, much of the outstanding information relating to his late wife in the records has been provided to the applicant. However, Tusla is seeking to withhold a small amount of information in relation to the applicant’s late wife on the basis of section 37(7), i.e. it contains the personal information of his late wife intertwined with the personal information of other third parties. In the circumstances, I am satisfied that I do not need to consider the applicability of section 37(8) and the Freedom of Information Act 2014 (Section 37(8)) Regulations (the 2016 Regulations) in this case and can confine my considerations to examining the applicability of section 37(7) to the information at issue.
This review is solely concerned with whether Tusla was justified in refusing access to certain information in the relevant records on the basis of sections 31(1)(a), 31(1)(b), 37(1) and 37(7) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, as has previously been explained to the applicant, 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.
Secondly, while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement at section 25(3) that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. Therefore, the description I can provide of certain parts of the records at issue and of my reasoning in this case is somewhat limited.
Finally, as set out above, in the course of the review by this Office, Tusla reconsidered its position and released further information to the applicant in the relevant records, particularly certain information in relation to his late wife. In its correspondence with the applicant it indicated that it did so in a spirit of openness and transparency and cognisant of the challenging experiences encountered by the applicant including the death of his wife in tragic circumstances. I would like to commend Tusla for adopting this position.
The records at issue in this case comprise the social work file relating to the applicant, his late wife and their son. In light of the clarifications outlined above, Tusla has refused access to parts of the records on the basis of sections 31(1)(a), 31(1)(b), 37(1) and 37(7) of the FOI Act.
Section 31(1)(a)
Tusla is now seeking to rely on section 31(1)(a) to refuse access to pages 104 and 105 of the relevant records.
Section 31(1)(a) provides that an FOI body shall refuse access to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). LPP provides for the confidentiality of two types of communication:
• confidential communications made between a client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege) and
• confidential communications made between a client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The concept of "once privileged, always privileged " applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. In its submissions to this Office, Tusla said pages 104 and 105 comprised correspondence to Tusla/HSE from solicitors acting on their behalf containing legal advice.
Having examined these pages of the records at issue, I am satisfied that they comprise communication between a client and its legal adviser for the purposes of the giving or receiving of legal advice. On the basis on the contents of the communication I am satisfied that it clearly falls within the scope of legal advice privilege. I therefore find that section 31(1)(a) applies to pages 104 and 105 of the records at issue.
Section 31(1)(b)
In light of the clarifications set out above, Tusla is now seeking to rely on section 31(1)(b) of the FOI Act to refuse access to pages 106-108, 130-138 and 142-148 of the relevant records.
Section 31(1)(b) provides that an FOI body shall refuse access to records the release of which would constitute a contempt of court. This provision of the FOI Act is mandatory – in other words, if it applies to the records at issue, the FOI body is obliged to refuse access to the records.
Contempt of court can arise in a number of ways. The general position of this Office in relation to contempt of court was set down in our previous decision in Case 070332, in which the then-Commissioner stated that her understanding was that, in order for contempt of court to have occurred, a party would have to contravene a court order or undertaking made to a court, commit an act of resistance to the court or engage in conduct liable to prejudice the trial of an accused person.
It is of relevance to this case that the in camera rule provides that 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 various proceedings including certain family law proceedings and certain proceedings involving minors. It should be noted that the identity of the requester is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).
In the case of L. K. v The Information Commissioner [2013] IEHC 373, the High Court considered the question of the in camera rule. In this case, the appellant had sought access to a report which had been prepared for District Court proceedings held in camera. The District Judge had also made an order in relation to the report. In the High Court, Ms J O’Malley, in considering the in camera rule and the order by the District Court judge, stated:
“The Information Commissioner has no authority to disregard either the statutory provisions relating to the in camera nature of the child care proceedings or the court order made in the case. It is no part of his powers to decide that the order was wrong, or that the appellant's right to a copy of the report under s.27 of the Child Care Act should prevail over such an order. Neither the status of the appellant as a party to the District Court proceedings nor the purpose for which she wishes to use the report are relevant to his powers in this respect .”
In submissions made by Tusla in the course of this review, it argued that the redactions it had made to the records were justified under section 31(1)(b) on the basis that the redacted material related to a care order issued by the District Court under the Child Care Act 1991 during an in camera sitting. More particularly, it said that the records at issue contain submissions for hearings relating to childcare matters and judicial directions. It further said that the relevant pages contain a report which were presented to an in-camera District Court sitting on 26 July 2012. It said that while the contents of the report would have been explained in open court it would be considered contempt of court to release the report to the applicant. Tusla argued that, if it were to release information that was submitted within the in camera court setting, or information that comprised recommendations emanating from such proceedings, it would find itself in contempt of court. In this manner, argued Tusla, section 31(1)(b) was applicable to the information it had redacted on the relevant pages.
In his application to this Office for a review of Tusla’s decision, the applicant did not directly address Tusla’s reliance on section 31(1)(b) of the FOI Act.
Having reviewed the information in the records that was withheld by Tusla on the basis of section 31(1)(b), I am satisfied that it relates to court proceedings held in camera. This is the case in circumstances where the relevant court proceedings were family law proceedings which were concerned with the care of a minor. I am not aware of any judicial authority regarding the disclosure of information regarding the relevant proceedings. I accept that disclosure under the FOI Act would amount to a contempt of court. Accordingly, I find that Tusla was justified in withholding pages 106-108, 130-138 and 142-148 of the relevant records pursuant to section 31(1)(b) of the FOI Act.
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, including personal information relating to a deceased individual. 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 (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 if that personal information is inextricably linked to personal information is inextricably linked to personal information relating to parties other than the applicant.
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. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition.
The information to which access has been refused in the relevant records relates to names and details of third parties. In addition, Tusla have refused access to a small amount of information relating to the applicant’s late wife and his son in the records in circumstances where it is closely associated with information relating to third parties. Finally, I note that Tusla has also refused access to the names of Garda members in the relevant records.
It is important to note that the fact that a requester may be aware of the nature of withheld information does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
In its submissions to this Office, Tusla said the information in the records which has been refused on the basis of section 37 relates to the personal information of individuals other than the requester. In certain cases, Tusla said that information which does not contain the name of an individual but does contain sufficient details which would enable an individual to be identified has been refused and therefore it considers it to comprise the personal information of individuals other than the requester.
Having examined the relevant records, I am satisfied that much of the information which has refused on the basis of section 37 comprises the personal information of individuals other than the applicant, his son and/or his late wife. I also accept Tusla’s argument that, in certain cases, even without names, third parties are identifiable.
Furthermore, I accept that in certain cases, information in relation to the applicant’s late wife and his son has been withheld in circumstances where it is closely linked to the information of third parties. The net effect of section 37(7) as set out above, is that, where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party or parties, and where it is not feasible to separate the personal information relating to the requester from that relating to the other party or parties, it can be described as joint personal information and section 37(7) must be considered. Having carefully considered the matter, I take the view that it is not practicable to separate the personal information relating to the applicant’s late wife and/or his son from that relating to other third party individuals.
Accordingly, I am satisfied that the withheld information comprises either personal information relating to other third parties or joint personal information relating to the applicant’s late wife and/or his son and other third parties. I also note that previous decisions of this Office have accepted that section 37(1) applies to the names of Garda members in circumstances where the relevant information does not relate to administrative matters of An Garda Síochána.
I find, therefore, that section 37(1) applies to all of the withheld information. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. 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,
No argument has been made that any of the circumstances outlined above apply in this case and I am satisfied that they do not. I find accordingly that section 37(2) does not serve to disapply section 37(1) in this case
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.
In its submissions to this Office, Tusla accepts that there is a public interest in openness, transparency and accountability in the manner in which it performs its functions. It also accepts that there is a public interest in members of the public knowing that the information held by public bodies in relation to them is accurate. However, it also considers that there is a strong public interest in protecting the right to privacy, making specific reference to the right to privacy as enshrined in the Constitution. It said that the records at issue are of a very sensitive and personal nature; relating to relationships within a family suffering trauma and include third party interactions or referrals made by third parties relating to the family. In such circumstances, Tusla considers that the public interest that the request should be granted does not outweigh the public interest in the right to privacy.
In the course of extensive correspondence with this Office, the applicant argued that he was entitled to access the complete file with respect to his late wife and his son. The applicant made a number of arguments to the effect that there were deficiencies in the care provided to his late wife which led to her death. The applicant also believes that his son was not appropriately supported while in foster care. The applicant said that his family was subjected to a ‘massive miscarriage of justice’ and the public interest requires that he be granted full access to the records at issue to fully understand the sequence of events leading to his late wife’s death and the subsequent placing of his son in foster case.
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 section 37(8) and the 2016 Regulations which I will consider below, 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. 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).
The applicant has made significant arguments that release of the records at issue would enhance the transparency and accountability of Tusla in respect of the standard of care afforded to his late wife and to a certain level his son. I understand and sympathise with the applicant’s desire to understand the circumstances surrounding the death of his wife and to understand more about the standard of care provided to her and I accept that he has identified a valid public interest argument in favour of granting the request with respect to the remaining information relating to his late wife in the records at issue.
On the other hand, it is also very important to restate that the release of records under FOI must be regarded, potentially at least, as release to the world at large. As I have already outlined, 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 deceased.
It seems to me that the public interest in enhancing the transparency and accountability of Tusla in relation to how it engaged with the applicant’s late wife and his son has been met to a large extent by the release of a significant amount of the information at issue. In processing this FOI request, it seems to me that Tusla has endeavoured to release the records to the greatest extent possible whilst seeking to protect the privacy rights of third parties. The question I must consider is whether the public interest in ensuring the further transparency and accountability of Tusla by releasing the remaining information withheld outweighs, on balance, the public interest in protecting the privacy rights of the third parties concerned.
The third party information contained in the records, while not particularly sensitive, remains personal information. 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 third party information 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 this information exists in this case.
Accordingly, I find that section 37(5)(a) 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 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.
Mary Connery
Investigator