Cinneadh
Mrs. X and Tusla – Child and Family Agency (Tusla)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-155370-K1D8D1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-155370-K1D8D1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Tusla was justified in refusing access to records relating to a safeguarding concern report involving the applicant’s son under sections 31(1)(b) and 37(1) of the FOI Act
29 August 2025
In a request dated 11 September 2024, the applicant stated “I am writing in relation to the safeguarding concern report involving my son... I refer to the letter received on 10th September 2024 and would like to formally request a copy of all information held in this regard.” In a decision dated 9 October 2024, Tusla part granted the applicant’s request. Tusla located two files of records and it refused access in full or in part to certain pages of records under sections 31(1)(b), 37(1) or 37(7) of the FOI Act. Tusla provided the applicant with schedules which list the pages where redactions were applied and the relevant section of the FOI Act, the schedules also lists certain pages that were refused on the basis that they are duplicates of other pages. On 28 November 2024, the applicant requested an internal review of Tusla’s decision, and she sought a full, unredacted disclosure of the records. On 9 December 2024, Tusla issued its internal review decision in which it affirmed its original decision. On 14 January 2025, 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 submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Tusla located two files of records that fall within the scope of the applicant’s request. The first file contains 302 pages of records. The second file contains 164 pages of records. Tusla refused access in full or in part to certain pages of records, as listed on the two schedules provided to the applicant and to this Office, under sections 31(1)(b), 37(1) or 37(7) of the FOI Act. The scope of this review is confined to whether Tusla was justified in refusing access in full or in part to the records at issue under sections 31(1)(b), 37(1) or 37(7) of the FOI Act.
Before I address the substantive issues arising, I would like to make a few preliminary comments.
Firstly, section 18 of the FOI Act provides that, if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. 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.
Secondly, 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 which I can give of the records at issue, and their content, is limited.
Thirdly, it is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the legislation places no restrictions on the use to which released records may be put.
The records at issue
The records at issue include social work notes and forms, notes of calls and meetings between Tusla and the applicant and between Tusla and third parties, Garda Síochána correspondence, notes of a support service, solicitors’ letters, official court correspondence and court ordered reports.
Section 31(1)(b) Contempt of Court
Tusla relied on section 31(1)(b) of the FOI Act in refusing access to file 1 pages 168-169, 236, 275, 294-302. In its submissions to this Office, Tusla said the listing of page 236 on the schedule for section 31(1)(b) was an error but the redactions were not and still apply under Section 37(1). I will therefore consider the information redacted from page 236 under section 37(1) below.
Section 31(1)(b) provides that an FOI body shall refuse access to records if their release 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.
In the context of this case, it is relevant to note 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 certain family law proceedings and certain proceedings involving minors.
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 that 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, O’Malley J, 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 its submissions to this Office, Tusla argued that it was justified in refusing access to the records at issue under section 31(1)(b) on the basis that the withheld material comprises references to family law proceedings which were concerned with the care of a minor, court directions and a court ordered report which fell under the in camera rule. Tusla noted that proceedings that are conducted under the in camera rule were typically subject to strict confidentiality, as disclosure could undermine the authority of the court or violate legal obligations. Tusla further noted that the rule is often applied in cases involving sensitive matters, such as family matters, personal privacy, or the protection of vulnerable individuals (such as minors). Tusla stated that the rule applies to proceedings in respect of which there was a statutory requirement that they be held in camera, and accordingly such proceedings are held in private, with the court closed to the public. Tusla argued that, if it were to release information that was submitted within the in camera court setting, or information that emanated from such proceedings, it would find itself in contempt of court. Tusla argued that in this case section 31(1)(b) was applicable to the information it had withheld as this information included references to court hearings, court orders, and reports prepared for court.
I have reviewed the material that was withheld by Tusla under section 31(1)(b) of the FOI Act. Essentially, Tusla has withheld records relating to court proceedings, court directions and a court directed report. 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 file 1 pages 168-169, 275, 294-302 pursuant to section 31(1)(b) of the FOI Act.
Sections 37(1) and 37(7)
Tusla refused access to parts of certain records, as identified on the schedules provided to the applicant and to this Office, on the basis that the information concerned is exempt under section 37(1) or 37(7) of the FOI Act.
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 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. 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.
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 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (i) information relating to the educational, medical, psychiatric or psychological affairs of the individual; (iii), information relating to the employment or the 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; (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; (xiv) the views or opinions of another person about the individual.
In its submissions to this Office, Tusla says this file relates to the applicant’s son. It says there are ongoing family law proceedings which include issues of separation and access. It says the file concerns these matters, and the majority of the redactions relate to a named third party individual. It says in certain instances the records contain joint personal information, for example telephone calls between Tusla and a third party individual where there are references to the applicant. It says it is satisfied that these calls were made in confidence, and it is not feasible to separate the personal information relating to the applicant from that relating to the third party. Tusla says Garda names have also been redacted under section 37(1) as An Garda Síochána is only partially covered by the FOI Act and this is consistent with previously upheld OIC decisions. It also says that staff names from a certain support service including outreach workers, family support etc. have been redacted as that service is not an FOI body. It says that names of Tusla staff members have been released in this request.
I have examined the records carefully and I am satisfied that none of the withheld parts of the records contain information which is personal information relating solely to the applicant. The information withheld includes the personal information of third parties or personal information relating to the applicant and/or her children that is intertwined with the personal information of third parties. In theory, one could extract certain words or phrases from these records, which relate solely to the applicant or her children. However, those parts appear in the context of other information relating to third parties. Having regard to section 18 of the FOI Act, I conclude that to release such versions of the records would be misleading. In addition, I consider that even if names were to be redacted, the individuals would be identifiable from the content of the records.
As regards names of members of staff, paragraph (I) of section 2 provides that where an individual is a member of staff of an FOI body, personal information does not include the name of the individual. I note in this regard, that names of Tusla staff members have been released. Staff names of a certain support service have been redacted. I am satisfied that the organisation in question is not an FOI body and I find that Tusla was justified in redacting the names of staff members of that organisation under section 37 of the Act.
An Garda Síochána is a partially included agency. Schedule 1 provides that “section 6 does not include a reference to … An Garda Síochána (AGS), other than insofar as it relates to administrative records relating to human resources, or finance or procurement matters”. It follows that the name of a member of AGS, where it is contained in a record that is not a relevant administrative record, cannot be regarded as the name of a member of the staff of a public body, for FOI purposes. In this case, the names of staff members of AGS are contained in reports prepared by AGS and Tusla in the context of the members operational duties. I am satisfied that these names should be treated as personal information and I find that Tusla was justified in withholding these names under section 37(1) of the Act.
I find that therefore that the withheld parts of the records, as identified on the schedules provided to the applicant and to this Office, are exempt from release on the basis of section 37(1) and section 37(7) subject to the provisions of section 37(2) and 37(5), which I examine below.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) 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) The Public Interest
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. In the particular circumstances of this case, 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 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 applicant says she is seeking full, unredacted disclosure of the requested records, as their current redacted state fails to meet the requirements for clarity and transparency, particularly in relation to safeguarding and legal obligations. The applicant argues that the public interest requires disclosure of this information when safeguarding a vulnerable child is at stake and further a vulnerable adult with a disability and also safeguarding a second child/family member. She also says she needs an unredacted copy of the file for legal proceedings.
Tusla says the public interest test set out in section 37 of the FOI Act generally requires the public interest to affect more than just private or personal interests. It says it needs to affect a significant part of the public or community. It says for this to apply, release of the records must support the good of society as a whole – and not just an individual or small group in society. It says release of information under the FOI Act is regarded as release to the world at large and as such the public interest that the request should be granted must outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. Tusla say in this instance, the records are of a sensitive and private nature and the privacy of third parties outweighs the public interest in the release of the records.
While the reasons outlined by the applicant for seeking the records are essentially private interests, it seems to me that these reasons are reflective of a wider public interest in facilitating scrutiny of how Tulsa carries out its functions in relation to child safeguarding matters. 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, therefore, will be set aside only where the public interest served by granting release (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
It seems to me, that the public interest in enhancing the transparency and accountability of Tusla in relation to how it carries out its functions concerning child safeguarding matters 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 in the records at issue outweighs, on balance, the public interest in protecting the privacy rights of the third-parties concerned. Having regard to the sensitive nature of the context in which the information is held, to the significant protection afforded to privacy rights, and to that fact that the release of records under section 37(5)(a) must be regarded effectively as release to the world at large, I am satisfied that it does not. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8)
Section 37(1) is also subject to section 37(8) of the FOI Act. Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure, NDP Delivery, and Reform (the Minister) may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations). Among other things, the 2016 Regulations provide for a right of access to personal information relating to an individual who has not attained full age by his/her parent or guardian where access to those records would, having regard to all the circumstances, be in the individual’s best interests. The Regulations do not apply, however, where the disclosure of the records relating to the child would also involve the disclosure of information relating to other parties. Having regard to the constraints imposed by section 25(3), I believe I can say only that the 2016 Regulations do not, in my view serve to disapply section 37(1) in this case.
Accordingly, I find that Tusla was justified in its decision to refuse access to the information withheld in the records at issue under section 37 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 its decision to refuse access to the information at issue under sections 31(1)(b), 37(1) and 37(8) 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.
Jim Stokes
Investigator