Whether TUSLA was justified in its decision to refuse access information contained in the birth records of the applicant-™s mother under section 37 of the FOI Act on the ground that disclosure of the information sought would involve the disclosure of personal information relating to third parties

31 January 2020

Background

On 15 October 2018, the applicant submitted a request to TUSLA for her mother-™s birth records. She was specifically seeking access to the names of her mother-™s birth parents and she included in her request her mother-™s written consent to access the records. In a decision that issued on 22 October 2018, TUSLA part-granted the request. It released six pages of records with certain information redacted under sections 41(1)(a) and 37(1) of the FOI Act.

The applicant sought an internal review of that decision following which TUSLA affirmed its original decision. On 29 December 2018, the applicant sought a review by this Office of TUSLA's decision.

During the course of the review, TUSLA stated that it was no longer relying upon section 41(1)(a) to withhold the information at issue and that it was relying solely on section 37(1) on the ground that the redacted information was personal information of third parties. Furthermore, following correspondence with this Office, TUSLA agreed to release additional information, comprising personal information of the applicant-™s mother held in records 1, 2, 4 and 6.

I have now completed my review of the HSE-™s decision. In conducting the 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 the applicant and TUSLA on the matter.

Scope of Review

This review is concerned solely with the question of whether TUSLA was justified in refusing access to the remaining information redacted from records 1, 4 and 6 under section 37(1) of the FOI Act.

Analysis and Findings

Section 37(1)

Section 37(1) of the FOI Act provides that access to a record shall be refused if granting access would 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 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.

Having examined the remaining redacted information, I am satisfied that the information sought by the applicant is personal information relating to the individuals other than the applicant or her mother. I find, therefore, that section 37(1) applies to the information.

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply.  I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say (a) the information contained in the records does not relate solely to the applicant; (b) the third parties to whom the information relates have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) 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) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. 

Section 37(5) of the FOI Act provides that 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 request would benefit the person to whom the information relates.

It has not been argued that releasing the records would benefit the persons to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals 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 TUSLA 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.

I accept that there is a public interest in ensuring the openness and transparency of public bodies. On the other hand, 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.

It seems to me that TUSLA has attempted to strike a balance between making as much information as possible available to the applicant concerning her mother-™s birth while seeking to protect the privacy rights of the relevant third parties. The question I must consider is whether the public interest in releasing the redacted information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates.

In considering this question, it is important to note that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records released under FOI may be put. Furthermore, the nature of the information sought is such that release would, in my view, involve a significant breach of the privacy rights of the individuals concerned. In those circumstances, I find that the public interest that the request should be granted in this case does not outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8)

For the sake of completeness, I would like to address the applicant's comments that her grandparents are long deceased. It is important to note that the protection afforded by section 37(1) to personal information of individuals extends to the protection of personal information relating to deceased individuals. However, under section 37(8), the Minister for Public Expenditure and Reform may provide by regulation for the grant of a request where the individual to whom the information relates is dead and the requester concerned is a member of a class specified in the regulations.

In exercise of those powers, the Minister for Public Expenditure and Reform introduced the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the Regulations), as amended. The Regulations provide for a right of access to personal information relating to a deceased individual by certain categories of requester. One such category is where the requester is the spouse or the next of kin of the individual and, in the opinion of the FOI body, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

In May 2017, the Minister published revised guidance concerning the operation of the regulations. The guidance states that applicants under the next of kin category would be required to produce evidence of their relationship to the deceased, namely an affidavit or other acceptable proof establishing the relationship and showing the necessary State certificates.

I accept that the applicant-™s grandparents are most likely deceased. However, it is not for this Office to make a finding as to the status of the applicant-™s mother in relation to the deceased individuals in question in this case. If the applicant-™s mother wishes to make a fresh request for the information concerned in accordance with the Regulations, it will be a matter for TUSLA to determine whether a right of access exists in accordance with the Regulations.

The applicant may care to note that the fact that a requester is the next of kin does not, of itself, mean that a right of access exists. The public body concerned must also consider whether having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request. The guidance published concerning the operation of the Regulations provides that, among other things, the public body should consider factors such as the confidentiality of the information at issue, whether the deceased would have consented to the release of the records to the requester when living, and the nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased.

In conclusion, therefore, I find that TUSLA was justified in refusing access to the remaining information redacted from records 1, 4 and 6 under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm TUSLA-™s decision in this case.

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