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Whether TUSLA was justified in refusing access to certain records concerning the applicant and her family under the provisions of sections 22(1)(b), 28(1) and 28(5B) 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

On 25 August 2014 the applicant made a 10-point FOI request to the HSE West for all information relating to herself and her family. The HSE identified five separate agencies who held records associated with the request, one of whom was TUSLA - the Child and Family Agency. In its original decision of 9 October 2014, TUSLA informed the applicant that it was part granting her request. The applicant sought an internal review on 14 October but did not receive a decision from TUSLA within the 15 working day timeframe provided for at section 14(4) of the FOI Act. On 11 November 2014, the applicant applied to this Office for a review of the decisions of all the agencies originally identified by the HSE, including TUSLA. On 17 November 2014, TUSLA responded to the applicant's internal review request and upheld its original decision.
Following communications with this Office, the applicant narrowed the scope of her application for review to the Commissioner so that it was confined to the decision made by TUSLA only. In this regard, the applicant confirmed that the main issue she wanted this Office to review was the decision of TUSLA on point 6 of her original 10-point request to the HSE West i.e. her request for all information relating to herself and her family.
I consider it appropriate to bring this review to a close by way of a formal binding decision.
In conducting this review, I have had regard to correspondence to and from the applicant, TUSLA and this Office, and between this Office and An Garda Síochána. I have also had regard to the contents of the records at issue.
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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.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 Review

This review is concerned solely with the question of whether TUSLA was justified in its decision to part grant or refuse access to the records on the basis that sections 22(1)(b), 28(1) and/or 28(5B) of the FOI Act apply. During the course of this review, TUSLA revised its position and agreed to release the names of the applicant's children as they appear in certain records together with names of public servants, members of An Garda Síochána, teachers, social workers and medical personnel that it had previously withheld. As I understand it, those parts of the records have not yet been released; therefore, I will deal with them in this review.

Preliminary Matters

The release of a record under the FOI Act is considered, effectively, as release to the world at large. However, whereas I am required by section 34(1) to give reasons for my decision, this is subject to the requirement of section 43(3) that I 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 which I can give of the records at issue and the circumstances of their creation is limited.
In her original application to this Office, the applicant noted that she had not received timely responses from all of the relevant agencies. She also queried whether certain records (files) were missing, although this was in relation to other agencies covered by her original request. She noted that the records provided to her by those agencies were not released in a form which corresponded to the details in the accompanying schedules. In carrying out a review, the Commissioner is primarily concerned with whether the Act entitles members of the public to have access to records held by a public body. The Act does not provide for a right of access to records which ought to exist. Therefore, the Commissioner does not have the authority to require a public body to create or acquire records where such records do not exist or are not held by it. It is also outside the remit of the Commissioner to adjudicate on how public bodies perform their functions generally. I note however that TUSLA contacted and met with the applicant several times to explain the position about the records and deal with her queries.

TUSLA identified seven files associated with the applicant's original FOI request, with a total number of records in excess of 1,100. A certain amount of information in the files is duplicated and consequently, the same or similar information is included in more than one record and in one or more file. Given the nature and content of the records which comprise an entire social work file, I have decided that it is appropriate for the purposes of this decision to deal with them as groups of records (by file number) where appropriate, rather than on a record by record basis. During the course of this review, An Garda Síochána provided a submission concerning a number of records. In its submission, An Garda Síochána argued, as TUSLA did, that personal information of individuals other than the applicant was exempt on the basis of section 28(1) and section 28(5B).
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.

Analysis and Findings

Section 22(1)(b)
TUSLA cited this exemption in respect of a number of records, namely: file 4 - records 69-86; file 5 - records 26-43 and 75-81; file 6 - records 14-37 and file 7 - records 1-33 and 43-48. I note that it is a mandatory exemption i.e. that it does not allow the exercise of discretion on the part of the decision maker.

Section 22(1)(b) of the FOI Act (as amended) provides that:-
A head shall refuse to grant a request under section 7 if the record concerned -
"...(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court,..."
The In Camera Rule
The in camera rule (i.e. that proceedings be held otherwise than in public) applies to Court proceedings in accordance with Section 29 of the Child Care Act 1991. It is a contempt of Court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. It is clear from my examination of the records that many of them were prepared for the Court in the context of proceedings under section 20 of the Child Care Act. While TUSLA identified a number of records to which it had applied the exemption at section 22(1)(b), during the course of this review it confirmed to the Investigator that additional records, identified as all the records in file 4 and records 70 to 73, inclusive in file 5, were also created in the context of proceedings under the Child Care Act. I have examined these records and I am satisfied that they are covered by the in camera rule.
In her judgment in LK and the Information Commissioner [2013] IEHC 373 which addressed records created in the context of child care proceedings, O'Malley J. stated, referring to the judgment of O'Neill J. in EH v. Information Commissioner [2001] 2 IR 463, that
"The Freedom of Information Act is not, as O'Neill J. makes clear, intended to be used in a manner that bypasses the Constitutionally established structures for the administration of justice."
O'Malley J. went on to find that:
"The Information Commissioner has no authority to disregard either the statutory provisions relating to the in camera nature of child care proceedings ...... Neither the status of the appellant as a party to District Court proceedings not[r] the purpose for which she wishes to use the report are relevant to his powers in this respect."
I am satisfied that the position as set out in LK and the Information Commissioner applies here and as I am not aware of the existence of any prior judicial authority for the release of these records, I consider that release of these records to the applicant on foot of her FOI request would constitute contempt of Court. I find, therefore, that section 22(1)(b) applies to the records identified above as emanating or derived from the proceedings involving the applicant and her family.

Section 28 - personal information
In respect of those records to which section 22(1)(b) does not apply, I am satisfied that section 28, which is also a mandatory exemption, is the most appropriate exemption to apply in this case, given the extent of personal information that appears in the records.
Firstly, I wish to deal with TUSLA's redaction of the names of Gardaí, teachers and public service staff as well as the names of the applicant's children throughout the records. Apart from those records already found to be exempt under section 22(1)(b) above, TUSLA agreed in principle that such information could be released. Information relating to the performance of their functions by employees of public bodies is expressly excluded from the definition of personal information for the purposes of section 28. The definition of personal information contained in section 2 of the FOI Act does not include:

"(i) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of staff, of a public body, the names of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid"

The fact that a person is referred to by name in a record does not necessarily constitute personal information about that person. In this regard, I note that in his decision in Case No. 99146 - Mr. X and the Southern Health Board (available on this Office's website at www.oic.ie) the former Commissioner, the late Mr Kevin Murphy, found that where Gardaí were acting in the normal course of their duties, their names did not qualify for exemption. Furthermore, in Case No. 070211, it was noted that the Commissioner has taken the view that records which identify school personnel in the context of their normal professional duties and which do not contain confidential information about individual teachers in their private capacities should normally be released. In this case, Gardaí and teachers were communicating with the social workers in the course of the performance of their functions. The redaction of their names was not, therefore, in accordance with section 28 of the Act and I find such information should be released to the applicant, as agreed by TUSLA. As regards the children's names as they appear in the records, regulations made under section 28(6) of the Act provide that, subject to certain conditions, a request for records relating to personal information about a minor may be granted where the requester is the minor's parent or guardian. Three of the children are aged between five and 12 years and in many instances, information about them in the records has already been released subject to redaction of their names. It seems that TUSLA's revised position now is that the names can be released to the applicant (the children's mother) where they appear in records not otherwise exempt, having regard to the contempt of court issue discussed above and/or and where the names are not inextricably linked to the personal information of other individuals with which I deal below. Accordingly, I direct the release of the names as agreed by TUSLA.
The records in files 1, 2, 3, 5, 6 & 7 contain information about the applicant and her children and third parties. The records provide details of contacts between social workers and the applicant, members of An Garda Síochána, medical personnel and other family members. The records also include reports from An Garda Síochána, social work case notes, letters, notes of meetings and notes of calls between social workers and the applicant, and/or notes and contact between social workers and third parties, including other members of the applicant's family.
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 "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, and having examined the records, I am satisfied they contain personal information, or joint personal information relating to third parties, as well as the personal information of the applicant and her children. It may well be the case that a considerable amount 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.
It may be possible to extract occasional sentences or parts of sentences from some of the records and argue that they comprise personal information relating solely to the applicant and/or her children. As noted above, however, the records on the files relate primarily to the applicant and her family and their interactions with TUSLA. It seems to me that, having regard to the context of their creation, none of the records that remain within the scope of this review contain information which is personal information relating solely to the applicant and/or her children. Much of the content is the personal information of the applicant's husband and other family members and third parties. Given the context of the information, most of it is correctly described as joint personal information.
I am satisfied that the remaining records (i.e. those not included in TUSLA's revised decision on the names issue dealt with above) contain information which constitutes either (a) personal information relating to other persons solely, or (b) joint personal information relating both to the applicant and her children and those other persons. Therefore, I conclude that, subject to the provisions of section 28(2) and section 28(5) which I examine below, those 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 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.
In relation to 28(2)(b) and consent, this Office has decided that, in all the circumstances of this case, it would not be appropriate to seek the views, or consent to release, of the third parties whose personal information is contained in the records. No argument that consent is available has been made by the applicant. I find, as a matter of fact, that none of the other third parties has consented to the release of their personal information and that, accordingly, section 28(2)(b) does not apply.
Section 28(5) - The Public Interest
Under section 28(5) 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.
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". The FOI Act recognises a very strong public interest in protecting privacy rights - in both 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"). 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 there is a general public interest in openness and accountability as to the manner in which TUSLA carried out its functions in relation to the applicant and her family. I am satisfied that the public interest in this case in openness and accountability has been met to a considerable extent by the release of the records concerning the applicant and her children. I am not satisfied that the significant invasion of the privacy rights of third parties which would be the consequence of releasing the remaining records and parts of records is warranted. Having considered the matter carefully, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find therefore that section 28(5)(a) does not apply in this case.
Also, I do not believe that the grant of the information would be to the benefit of the third parties concerned and therefore section 28(5)(b) is not applicable in this case.
Section 28(6) - Access by parents or guardians to the personal information of minors
Section 28(6) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access 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 FOI Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009), in turn, make provision for access by parents or guardians to personal information in relation to minors in certain circumstances.
In the particular circumstances of this case, I have considered whether there is any remaining information in the records (apart from the names which TUSLA has agreed to release) not otherwise found to be exempt from release, to which the provisions of section 28(6) would apply, i.e. is there any further personal information of the applicant's children which could possibly be considered for release under this provision. Taking into consideration the position as regards sections 13 and 28(5B) as set out above, I am satisfied that any remaining information in the records about the children is so intertwined with the personal information of third parties that it would be impractical to isolate it for release in any manner which would not make the information misleading. Even if it was necessary to consider whether the views of the children should be sought in this case, I stress that section 28(6) would not displace the in camera rule (section 22(1)(b)) or the other provisions of section 28 insofar as the joint personal information involves persons other than the applicant's children. This being the case, and in light of the decision of TUSLA to release the names of the applicant's children, I am satisfied that it is not necessary for me to give a more detailed consideration of the application of section 28(6).
In summary, I find that section 28(1) and/or 28(5B) apply to exempt the remaining records (other than the redacted names which TUSLA has agreed to release).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I affirm the decision of TUSLA in relation to the records to which access was refused under section 28 of the Act (with the exception of certain redacted names described in the decision which I direct should be released as agreed by TUSLA); I also affirm TUSLA's decision that section 22(1)(b) applies to records relating to proceedings under the Child Care Act and find that this exemption also applies to additional records, namely, all the records in file 4 and records 70 to 73, inclusive in file 5.

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. Such an 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