Whether TUSLA was justified in refusing access to Local Adoption Committee records relating to the applicant on the basis of sections 15(1)(a) of the FOI Act

9 August 2021

Background

In a request dated 19 March 2020, the applicant sought access to records relating to meetings of the Local Adoption Committee.  She outlined seven categories of records that included minutes of two meetings, related correspondence, notes and memos. In a decision dated 9 June 2020, TUSLA part granted the request.  It released two records and part released a further two records with redactions made on the basis of section 37 of the FOI Act (personal information).  TUSLA refused access to three of the categories of records sought by the applicant on the basis of section 15(1)(a) of the FOI Act, i.e. the records do not exist or could not be found after all reasonable searches.  The applicant sought an internal review and said that she did not accept that there were no further records.  In its internal review decision dated 3 July 2020, TUSLA again part granted the request.  It identified 12 records relevant to the applicant’s request, eight of which were released in full to the applicant, while access to four of the identified records was partially granted.  Certain information was redacted in these four records on the basis of section 37(1) of the FOI Act.  On 6 July 2020, the applicant applied to this Office for a review of TUSLA’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant and to the submissions made by the FOI body in support of its decision.  I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As set out above, TUSLA redacted certain information from the partially released documents on the basis of section 37 of the FOI Act because TUSLA was of the view that it constituted the personal information of third parties. The applicant in this case has not sought to challenge the redactions made to the released documents in either her request for an internal review by TUSLA, or in the application to this Office, both of which raised issues with TUSLA’s reliance on section 15(1)(a) of the FOI Act.

As such, this review is confined to whether or not TUSLA was justified in refusing access to records on the basis of section 15(1)(a) of the FOI Act. 

Preliminary matters

The applicant has explained the basis for her doubts regarding TUSLA’s assertion that no further records exist in relation to her request. I wish to note at the outset that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigate complaints against a public body, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As noted above, this review is confined to considering TUSLA’s refusal of the applicant’s FOI request.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

This Office’s Investigator put a number of questions to TUSLA regarding the searches that it carried out in response to the applicant’s assertion that further records ought to exist. TUSLA outlined specific steps it took to locate records, including the names of people and sections that were asked to carry out those searches. This Office provided these details to the applicant, therefore I do not consider it necessary to repeat them in full here.

In summary, TUSLA stated that all locations, details of which were supplied, which may have held relevant records were searched and that both manual and electronic searches were conducted.  Email searches were conducted by the staff specified in the request and cross checked on incoming and outgoing emails, with the search criteria determined by the dates specified in the request and the staff names specified within the request. Email searches were also conducted by the National Manager of Adoption Services and on behalf of one relevant staff member who no longer works at TUSLA, using the search criteria outlined above. The latter search was conducted on foot of an exceptional access request, which was made to TUSLA’s ICT division, to enable the FOI National Manager to access and examine this former staff member’s emails, in order to establish if there were any records in existence that came within the scope of this request. TUSLA told this Office that all staff carrying out searches understood the nature of the records requested and the locations of where any such records created would be held. The identification of the locations, electronic systems and manual records in each relevant area related to this request were discussed, cross-checked and comprehensive. When all avenues with regard to the records were considered and not located, it was at this juncture that TUSLA determined that some of the records requested did not exist.

Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request.

I understand the applicant’s position that further records ought to exist, and the points that she has raised in this regard. It is my view that TUSLA provided reasonable responses in this regard. TUSLA followed up the specific points raised by the applicant with the relevant divisions internally and provided answers to specific questions during this Office’s investigation, all of which were provided to the applicant.

Taking into account the search details provided by TUSLA, its responses to the applicant's points, and to this Office's queries, I am satisfied that TUSLA has taken all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request. Accordingly, I find that section 15(1)(a) of the FOI Act applies on the ground that no further relevant records exist or can be found after reasonable searches were conducted.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA’s decision on the basis of sections 15(1)(a) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Deirdre McGoldrick

Senior Investigator