Whether TUSLA was justified in deciding to refuse access to parts of the applicants' fostering files on the grounds that the records are exempt from release under sections 31(1)(b) and 37 of the FOI Act

5 April 2018

Background

On 14 March 2017, the applicants made an FOI request to TUSLA for information relating to them in their role as foster carers. TUSLA did not issue a decision within the statutory time-frame. On 27 April 2017, the applicants applied for an internal review of the deemed refusal. On 6 June 2017, the applicants applied to this Office for a review. Following this Office's intervention, TUSLA issued a letter to the applicants on 22 June 2017, in which it granted access to certain information and refused access to the remaining records under sections 31(1)(a) (legal professional privilege) and (b) (contempt of court) and 37 (personal information) of the FOI Act. On 11 July 2017, the applicants applied to this Office for a review of TUSLA's decision.

In conducting my review, I have had regard to the correspondence between the applicant and TUSLA as outlined above and to the correspondence between this Office and both parties, as well as to the contents of the withheld records that were provided to this Office by TUSLA for the purposes of this review.

Scope of the Review

Having read Records 12-14 (File 2) and Records 77-78 (File 7), I do not believe that they fall within the scope of the applicants' FOI request, which sought information relating to them in their role as foster carers. Those records are therefore outside the scope of this review.

During this review, the applicants have consistently claimed that TUSLA should have identified further records relating to their FOI request. The Investigator put specific queries to TUSLA about this, following which TUSLA released further information to the applicants on three occasions, by letters dated 18 September 2017, 5 March 2018 and 21 March 2018. It apologised to the applicants for not identifying further records earlier and attributed it to human error. I address the existence of further records below. 

All the information which TUSLA has released in this matter to date falls outside the scope of this review. All the information which TUSLA has withheld in this matter to date remains inside the scope of this review. This review is concerned with whether TUSLA was justified in refusing access to the withheld information, under sections 31 and 37 of the FOI Act. I have adopted the numbering used by TUSLA in its schedules.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, as the chronology above highlights, TUSLA did not adhere to the statutory time-frames in processing the applicants' FOI request. As this Office has previously stated, it is incumbent on FOI bodies to put the resources in place in order to be able to deal with FOI requests and reviews appropriately, especially where a high volume of FOI requests is received.

Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on TUSLA to satisfy me that its decision is justified.

Thirdly, 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.

Finally, with certain limited exceptions (e.g. sections 37(2) and 37(8), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

Following the most recent release of information, the applicants contacted this Office to say that yet further records exist. Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The manner in which TUSLA has released records in this case is unsatisfactory. It clearly indicates to me that TUSLA has not taken all reasonable steps to ascertain the whereabouts of the relevant records. 

In the circumstances, I find that TUSLA is not justified in refusing access to further records under section 15(1)(a). I direct TUSLA to undertake a further search for records within the scope of the applicants' FOI request and take a fresh decision on any such records in accordance with the FOI Act. It would be helpful if the applicants provided TUSLA with as much as information as possible to ensure that TUSLA's search is comprehensive.

Section 31(1)(b) - Contempt of Court

Section 31(1)(b) of the FOI Act requires that records be withheld where it is known, or ought reasonably to be known, that their disclosure would constitute contempt of court. While these records could also be dealt with under section 37 below, I note that Records 65-75, 80-96, 107-124 and 127-147 (File 7) are stated on their face to have been prepared in the context of court proceedings about care orders. Court childcare proceedings are held in camera and it is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority.  I consider that any record that was created for such proceedings is required to be withheld under the mandatory 31(1)(b) of the FOI Act. I therefore find that the above-numbered records, as well as containing personal information of individuals other than the applicants, are exempt under section 31(1)(b) of the FOI Act. 

Section 37 - Personal information

TUSLA claims section 31(1)(a) (legal professional privilege) over certain records in File 7 (76-78, 97-102, 106, 125-126, 148-149). I am not satisfied that all of these records fulfil the necessary requirements to qualify for legal advice privilege. Having read these records, I consider it appropriate to review them under section 37 (personal information), together with all the remaining records under review. 

Sections 37(1) and 37(7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. 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.  The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: "(i) information relating to the educational, medical, psychiatric or psychological history of the individual" and "(xiv) the views or opinions of another person about the individual".

Section 37(7) provides that access to a record which relates to the requester shall be refused if 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 people other than the requester. This is subject to certain exceptions, which I consider below.

The records relate to: children who are or were in foster carer; parents and other family members of children in foster care; and other third parties. They contain the names and mobile telephone numbers of individuals other than the applicants, as well as information relating to care orders about children. They also contain information relating to the educational, medical and psychological history of individuals other than the applicant, in addition to views or opinions about individuals other than the applicants. Accordingly, their release would involve disclosing personal information relating to individuals other than the applicants. 

In theory, one could extract certain words or phrases from these records which relate solely to the applicants. However, those words and phrases appear in the context of other information which relates to the care and welfare of children in foster care and to other third parties. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. I therefore find that, with the exception of certain records dealt with below, the records are exempt from release under section 37(1) of the FOI Act. This finding is subject to the provisions of sections 37(2) and 37(5), which I examine below. Moreover, it does not apply to certain records which I list below in my consideration of section 37(2). 

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. Section 37(2)(a) disapplies section 37(1) where the information concerned relates to the requester concerned. In my view, some of the withheld information relates more to the applicants than to the children being fostered or other third parties. Specifically, it relates to the applicants' foster caring arrangements and includes professional observations of, and opinions about, the applicants in connection with particular foster placements. I therefore consider that this information falls into the definition of personal information under section 2 of the FOI Act and relates to the applicants. Having regard to section 18 of the FOI Act and the fact that much of the surrounding information has already been released, I consider that it would be practicable to grant access to it such that section 37(2)(a) would apply. This would be subject to the redaction of any identifying references to individuals other than the applicants (except for staff members of FOI bodies). These records are: Record 56 of File 2; Records 72 (last redacted sentence only), 88 (redacted sentence only), 121 (first redacted sentence only) and 165 of File 3; and Record 123 (eighth redacted bullet-point only) of File 8 released on 21 March 2018. For the avoidance of doubt, my directions are specified in detail below, under "Decision".

However, I am satisfied that none of the circumstances in section 37(2) apply to the records which I have found to be exempt under sections 37(1) above. That is to say, (a) they do not relate solely to the applicants; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information 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. I am then required to consider section 37(5) as it applies to the records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates. 

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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. 

The information which the records contain relates to the histories of children in foster care and to their welfare, as well as to family members of such children. I consider this to be highly sensitive information, which is extremely personal to the third parties concerned. I consider that a significant invasion of privacy would occur if the records were disclosed to the world at large, which is the effective result of releasing records under FOI. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. 

Section 37(8)

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 applicants are the legal guardians of the third parties and I have no reason to believe that this is the case. 

Findings

Having regard to the above, I find that TUSLA is not justified under section 37 of the FOI Act in refusing access to Record 56 of File 2; Records 72 (last redacted sentence only), 88 (redacted sentence only), 121 (first redacted sentence only) and 165 of File 3; and Record 123 (eighth redacted bullet-point only) of File 8 released on 21 March 2018. I find that TUSLA is justified in refusing access to the remaining records, under section 37(1) of the FOI Act. 

I have found the records over which TUSLA claims section 31(1)(a) to be exempt under section 37. I am therefore not required to consider section 31(1)(a). 

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary TUSLA's decision:
I direct TUSLA to undertake a further search for records within the scope of the applicants' FOI request and take a fresh decision on any such records in accordance with the FOI Act.

I annul its decision to refuse access to Record 56 of File 2; Records 72 (last redacted sentence only), 88 (redacted sentence only), 121 (first redacted sentence only) and 165 of File 3; and Record 123 (eighth redacted bullet-point only) of File 8 released on 21 March 2018. I direct the release of those records in accordance with the provisions of section 18 of the FOI Act, with the redaction of any identifying references to individuals other than the applicants (except for staff members of FOI bodies). 
I affirm its decision to refuse access to the remaining records, under sections 31(1)(b) and 37 of the FOI Act.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator