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Case Number: 160092

Whether TUSLA was justified in its decision to refuse access to records/parts of records in relation to a child protection assessment on the basis of sections 31(1), 32(1), 37(1) and 37(7) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 16 November 2015, the applicant made an FOI request to TUSLA seeking access to records held by an area office from 29 March 2012 to 8 August 2012 relating to contact with that office in relation to a child protection assessment for her child and subsequent complaint to a named person regarding same. As the applicant did not receive a decision within the statutory time frame she requested an internal review on 17 December 2015. TUSLA issued a late internal review decision on 26 January 2016 stating that it had located a social work file and complaint file relevant to her request. TUSLA part granted the request. It refused access to records/parts of records on the basis of sections 31(1), 32(1), 37(1) and 37(7) of the FOI Act as identified on the schedule provided to the applicant.

The applicant wrote to this Office on 25 February 2016 seeking a review of TUSLA's decision. She requested access to:

(1) written reports or notes of interviews by named officials referred to in records 10 and 14 on the complaint file;

(2) redacted part of record number 138 on the social work file;

(3) records of interviews by social workers with named persons and employees of the area Childcare Committee on the social work file;

(4) 13 records which the applicant believes should exist comprising notes of contact/meetings between officials and/or other persons.

The applicant also requested clarification on a number of issues. TUSLA agreed to provide clarification and suggested that the applicant contact a named official to discuss the matters raised in her application. The FOI Act provides for a right of access to records as opposed to information or clarification, therefore, this part of the applicant's application is outside the scope of this review. During the course of this review, following communications between this Office, TUSLA and the applicant, additional records were released. Submissions have been received from TUSLA and the views of this Office have been communicated to the applicant who requested that the review be finalised by way of a formal, binding decision.

In conducting my review I have had regard to the submissions from TUSLA and the applicant and to correspondence between the applicant and TUSLA. I have examined the contents of records provided to this Office for the purposes of this review and had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with whether TUSLA was justified in its decision to refuse access to the records/parts of records identified above under sections 31(1), 32(1), 37(1) and 37(7) of the FOI Act.

Analysis and Findings

Section 18
Firstly I should draw attention to section 18 of the FOI Act which 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 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22
It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on TUSLA to satisfy the Commissioner that its decision to refuse access to the records was justified.

Section 15(1)(a)
In its submission, TUSLA contends that while three emails were released referring to one of the records identified at (4), the remaining records at (1) and (4) identified above do not exist. It therefore relies on section 15(1)(a) to refuse access to these records.

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).

TUSLA submits that there are no written reports or notes of interviews by named officials referred to in records 10 and 14 on the complaint file as identified at 1 above. Regarding point 4 above, TUSLA says that following searches of its email system, three emails were located relating to one of the 13 items identified and the emails were released. TUSLA contends that no further records exist relating to the items identified at 1 and 4 above. It submits that while the applicant indicates that records should exist, this does not mean that such records actually exist.
The applicant states that she has 13 pages of typed notes referring to telephone calls, which, according to TUSLA, were typed in 2015. She is seeking access specifically to the handwritten notes of (1) four telephone calls between the social workers and the Gardaí dated 30 March 2012 (record 105) and (2) the telephone call between the social worker and the Gardaí dated 12 April 2012, (record 112). TUSLA responded that there appears to have been an error when the notes were being typed and that the note at (1) should have been dated 3 April 2012 instead of 30 March 2012. It submits that a handwritten note of this phone call is detailed in record number 169 and was subsequently released in full. It also states that the written note of 12 April 2012 is contained in record number 158 and was withheld on the basis of section 37(1). This record is considered below.
I am satisfied that TUSLA has responded adequately to this Office's queries and taken all reasonable steps to locate any further records. I see no basis to dispute TUSLA's position that the records identified by the applicant do not exit or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. I consider that TUSLA's decision to refuse to release further records to the applicant was justified in the circumstances and I find that section 15(1)(a) applies to exempt any further records.

Section 37
Record number 158 dated 12 April 2012 relates to two telephone conversations, one between a social worker and a Garda and the second between a social worker and an area Childcare Committee. The applicant, in a submission to this Office states that, in her view, the content of this record relates to her and/or her child and the doctor's report and requested that the record be released with the personal information of any third party redacted. This Office asked TUSLA to review this record with the view to partial release. On 15 September 2016, TUSLA agreed to part release record 158. The part released referred to a reference to telephone conversation between the social worker and the doctor and the area Childcare Committee. The remaining third party information was withheld.

The records identified at (2) and (3) above and record no 158(remaining part) were withheld on the basis of section 37(1) and 37(7) of the FOI Act. Section 37(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 37(7) further provides for the refusal of a request where the body considers that access to the record 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 other than the requester. Section 2 of the FOI Act defines the term "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 the body as confidential. The definition of personal information contains a list of 14 specific types of information including the name of an individual where it appears with other personal information relating to the individual.

The records identified above are social work records concerning the applicant and/or her child in relation to a child protection assessment during the period of 29 March 2012 to 8 August 2012. Having examined the records, I note that the information redacted by TUSLA refers to (1) persons other than the applicant including third parties, such as the family members of the applicant and her child carer and (2) the applicant and/or her child and those third parties. It seems to me that, given their context and content, none of the withheld records within the scope of this review contain information which is personal information relating solely to the applicant and/or her child. In considering this aspect, I have taken account of section 18 of the FOI Act as referred to earlier in this decision. On that basis, I find that the withheld records/parts of records, identified at (2) and (3) above and record 158, are exempt from release on the basis of section 37(1) and section 37(7) subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2) and section 37(5)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue here.

Section 37(5) of the FOI Act provides that a request which 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 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 individual concerned. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual 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 itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. To a large extent, this public interest, in this case, has been served by the release of the substantive records albeit with a number of redactions. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also 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 find that, in the circumstances of this case, the right to privacy of the third parties whose personal information is in the records outweighs the public interest in granting the applicant's request.

In summary, I find that sections 37(1) and 37(7) applies to the records/parts of records at 2 and 3 above and record 158 and that none of the exceptions under section 37 apply to the information.

As I have found that TUSLA was justified in refusing access to the records under sections 15(1)(a), 37(1) and 37(7), I do not consider it necessary to examine the application of section 31(1) and section 32(1).

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of TUSLA to refuse access to the withheld records/parts of records.

 

Right of Appeal

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.

 

Elizabeth Dolan
Senior Investigator