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Case Number: 170042

Whether TUSLA was justified in deciding to refuse access to the name of a person who made an allegation against the applicant on the ground that it was given in confidence

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

Background

The applicant submitted a request to TUSLA on 15 November 2016 for access to the name of a person who made an allegation against her regarding her child care practices. On 13 December 2016, TUSLA refused her request under section 35(1)(a) of the FOI Act. The applicant sought an internal review of that decision on 20 December 2016, following which TUSLA affirmed its decision to refuse the request. On 25 January 2017, the applicant sought a review by this Office of the Department's decision.

In carrying out my review, I have had regard to the correspondence between TUSLA and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and TUSLA on the matter.

Scope of Review

This review is concerned solely with whether TUSLA was justified in its decision to refuse access to the name of the person who made an allegation against the applicant.

Analysis and Findings

TUSLA relied on section 35(1)(a) of the FOI Act to refuse the request. That section is concerned with the protection of information given to a public body in confidence. As only the name of the complainant is at issue in this case, it is my view that section 42(m)(i) of the Act is the more appropriate section to be considered. Although it has not been invoked by TUSLA, it acts to restrict the applicability of the FOI Act in certain circumstances and I therefore believe it appropriate to consider this provision first, before proceeding to consider section 35, if necessary.

Section 42(m)(i) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the person who provided information. The second is that the provider of information must have provided that information to the FOI body in confidence, while the third is that the information provided to the FOI body must relate to the enforcement or administration of the law.

First requirement
The first requirement is clearly met in this case, given that the request is for the name of the person who made the allegation.

Second Requirement
The second requirement is that the provider of information must have provided that information to the FOI body in confidence. It is arguable that if people who wished to provide information to TUSLA in cases where they have concerns about the level or nature of care being provided for children were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. TUSLA stated that its practice is to treat the identities of complainants as confidential. I accept that without an assurance or understanding that information being provided was provided in confidence, such persons may be reluctant to provide the information. In this instance the complainant specifically requested anonymity when making the complaint to TUSLA.

The applicant argued that the complainant submitted the complaint to TUSLA with malicious intent. This Office accepts that bodies such as TUSLA act upon every report such as the type at issue in good faith and that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public which bodies such as TUSLA rely upon to carry out their functions. Having regard to the nature of the information at issue and to TUSLA's position on the matter, I accept that the information was given in confidence in this case and I find that the second requirement has been met.

Third Requirement
The third requirement is that the information provided to the FOI body relates to the enforcement or administration of the law. TUSLA is charged with the enforcement of legislation relating to child care and early years services. In particular, services are inspected, and complaints relating to early years services are addressed by the Early Years Inspectorate under the Child Care Act 1991 (Early Years Services) Regulations 2016. Therefore, I am satisfied that the third requirement is met in this case.

Having found that each of the three requirements are met, I find that section 42(m)(i) the FOI Act applies and that TUSLA was justified in refusing the request for the identity of the person who made the complaint. Having so found, it is not necessary for me to consider the applicability of section 35(1)(a) to the information sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TUSLA to refuse access to the name of the individual who made an allegation against the applicant on the basis that, under section 42(m)(i), the Act does not apply to that information.

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.

Stephen Rafferty
Senior Investigator