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Whether TUSLA was justified in deciding to refuse access to parts of the applicant's file on the grounds that the records are exempt from release under section 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made an FOI request to TUSLA on 2 February 2014 for access to her file. As no decision was received, the applicant wrote to TUSLA on 27 March 2014 requesting an internal review on the basis that she had not received a decision on her request. She stated that she is a foster parent with TUSLA and that she had been trying to get access to her file verbally since the end of August 2013 following the conclusion of a child protection investigation. On 16 June 2014 TUSLA granted her request in part by refusing access to some records, releasing copies of some records and providing access by inspection only to certain other records.
The applicant wrote to this Office on 18 July 2014 seeking a review of TUSLA's decision. In a telephone call to this Office on 25 February 2015, the applicant said that she wanted access to records concerning herself and two named foster children. She also requested copies of records which were provided to her by inspection only. On 16 March 2015, Ms Alison McCulloch, Investigator in this Office, contacted the applicant and told her that, in her view, the withheld records and those provided by inspection were exempt from release on the basis of section 28 of the FOI Act, as they contained joint personal information of the applicant and other parties. As the applicant has not withdrawn her application, I consider that the review should now be finalised by way of a formal, binding decision. It appears that the HSE handled the review on behalf of TUSLA in this case although the internal review was carried out by a TUSLA decision maker. The Children and Family Services functions of the HSE were transferred to TUSLA on 1 January 2014. For the purposes of this review, references to TUSLA should be read as the HSE where appropriate.

In reviewing this case I have had regard to the following:
TUSLA's decision on the matter,
TUSLA's communications with this Office,
the applicant's communications with this Office,
communications between the applicant and TUSLA on the matter,
the content of the withheld records provided to this Office by TUSLA for the purposes of this review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the question of whether TUSLA was justified in refusing access to the withheld records concerning the applicant and two named foster children on the basis of section 28 of the FOI Act. It will also examine whether the granting of access to some records by means of inspection is justified under section 12(2)(b)(iv) of the FOI Act. The applicant agreed in the course of the review that she did not require access to correspondence and documents provided by her to TUSLA.

Preliminary Matters

Section 8
Section 8(4) of the FOI Act states:
"Subject to the provisions of this Act, in deciding whether to grant or refuse to grant a request under section 7 -
(a) any reason that the requester gives for the request, and
(b) any belief or opinion of the head as to what are the reasons of the requester for the request,
shall be disregarded"

Thus, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. I note that, in her submissions the applicant makes reference to the EU Charter of Fundamental Human Rights, her right to "good administration", her removal from the foster care panel, the right to defend her good name and the principles of natural justice. She believes that the decision maker was "biased". These matters will be considered insofar as they are relevant to the question of the public interest which will be addressed below.

Section 13
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 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.

Section 43(3)
Section 43(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions 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 themselves is very limited. Given the nature and content of the records which comprise three folders of records, I have decided that it is appropriate for the purposes of this decision to deal with them as a group of records, rather than on a record by record basis.

Analysis and Findings

Section 28
Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 28(5B) provides for the refusal of a request for information which, if released, would result in the disclosure of personal information about other parties as well as about the requester.

The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. In light of that definition, I accept that the records in this case contain personal information or joint personal information relating to the foster children and/or the foster children and the applicant. It may well be the case that much of the withheld information is generally known to the applicant. Nevertheless, I must consider that, when a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large", as the Act places no restrictions on the subsequent uses to which the record may be put.

I have examined the withheld records included in the scope of this review which refer specifically to the applicant and the two named children fostered by the applicant. I have also examined the records to which the applicant was given access by inspection only. I note that the records which were provided for inspection concern complaints made by a foster child regarding the placement. These records include a report of the interview with the applicant, a Report for the Foster Care Committee and a Fostering Social Workers' Report for the Foster Carer Review. These records also concern the personal information of other parties including children fostered by the applicant.

TUSLA could not establish whether records numbered 209 to 218 were refused, partially released or granted in full to the applicant. I have examined these records, which appear to be notes made by a Social Worker, and I am satisfied that they contain the joint personal information of the applicant and other third parties such as foster children and their families.

It is possible to extract occasional sentences or parts of sentences from the records within the scope of this review and argue that they comprise personal information relating solely to the applicant. However, such information arose in the context of the welfare and care of the applicant's foster children who are third parties. It is clear to me that although such information relates to the applicant, it also relates to the foster children, their parents and other third parties. In my view, given the context of the information, it may be more correctly described as joint personal information. It seems to me that, given their context and content, none of the records within the scope of this review contain information which is personal information relating solely to the applicant. I note that the personal information of other individuals, in addition to that of the applicant and the named foster children also appears in the records. In considering this aspect, I have taken account of section 13(2) of the FOI Act as referred to earlier in this decision. I am satisfied that these records contain information which constitutes either (a) personal information relating to other persons solely or (b) joint personal information relating both to the applicant and those other persons. Therefore, I conclude that, subject to the provisions of section 28(2) and section 28(5) which I examine below, the records are exempt from release on the basis of section 28 of the FOI Act and I find accordingly.

Section 28(2)
There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. Having examined the details to which I have found section 28(1) and/or section 28(5B) to apply, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of that information; (c) that the information is not of a kind that is available to the general public; (d) that 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) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the applicant, and I find that section 28(2) does not apply to the records at issue here.

Section 28(5) - The Public Interest
Under section 28(5), however, access to the personal information of a third party may be granted where:

(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 information would be to the benefit of the person to whom the information relates.

I do not believe that the grant of the information would be to the benefit of the third parties concerned and the applicant has not argued that this would be the case.

In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

I accept that there is a public interest in openness and accountability with respect to the performance by TUSLA of its functions. The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business, including TUSLA's conduct of investigations into allegations of wrongdoing involving children. It is also relevant to note that there is a public interest in safeguarding the flow of information (often involving sensitive family matters) toTUSLA. It has been argued by the applicant that there is also a public interest in her being able to defend her good name. However, in this case, the applicant has been made aware of the complaint and also provided with an opportunity to inspect the Report for the Foster Care Committee and the Fostering Social Workers' Report for the Foster Carer Review.

The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 28 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"). It is worth noting that the right to privacy also 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. I consider that, in the circumstances of this case, the rights to privacy of the various third parties whose information is at issue outweighs any public interest in granting the applicant's request. I find accordingly.

Section 28(6)
Regulations have been made by the Minister in relation to FOI requests where the requester is the parent or guardian of a child to whom the record relates. It has not been argued that the applicant is the legal guardian of any of the individuals referred to in the records and I have no reason to believe that this is the case.

Section 12
I understand that the applicant has had an opportunity to read the records made available for inspection by TUSLA. I consider that the approach of allowing inspection of certain records complies with the requirements of section 12(2)(b)(iv) of the FOI Act. Section 12(2)(b)(iv) provides for access to be given to a record in a manner other than that specified by the requester, where to grant access in the manner specified would prejudice, impair or damage any interest protected by Part III of the FOI Act (which concerns exempt records including those exempt under section 28).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of TUSLA to refuse access to the withheld records and to refuse to provide photocopies of the records made available to the applicant by means of inspection only.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator