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Case Number: 160135

Whether TUSLA was justified in refusing the applicant's request for access to records relating to her during her residency at a named industrial school on the ground that they do not exist or cannot be found

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

On 22 April 2015, the applicant made a request to TUSLA for any information, files or records relating to her during her stay at the Good Shepherd Convent, Sunday's Well, Cork. On 16 May 2015, TUSLA refused the applicant's request on the ground that no relevant records could be found. Following the applicant's request for an internal review of that decision on 1 September 2015, TUSLA affirmed its original decision on 2 October 2015. On 22 March 2016, the applicant sought a review by this Office of that decision.

During the course of the review, TUSLA made submissions detailing the searches it carried out in response to the applicant's request. I note that Mr Christopher Flood of this Office provided the applicant with details of those submissions and informed her of his view that TUSLA was justified in its decision to refuse the request on the ground that no relevant records exist or could be found. Nevertheless, the applicant indicated that she requires a formal decision on the matter. Accordingly, I have decided to conclude this review by way of a formal binding decision.

In carrying out this review, I have had regard to correspondence between TUSLA and the applicant, as set out above, to details of various contacts between this Office and TUSLA, and to details of various contacts between this Office and the applicant.

Scope of Review

This review is concerned solely with the question of whether TUSLA was justified in refusing access to records relating to the applicant during her stay at the Good Shepherd Convent, Sunday's Well, Cork, on the ground that no such records exist or can be found.

Analysis and Findings

Section 15(1)(a) provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". In cases such as this one, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence, and to assess the adequacy of the searches conducted by the public body in looking for relevant records. 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 public body, insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

The applicant has stated that she was resident in the Convent between 1975/1976 and 1985/1986. I should state at the outset that TUSLA readily accepts that it is well established that the applicant resided in the Convent. However, as I have indicated above, this review can only concern itself with whether TUSLA has taken all reasonable steps to locate the records sought. I note that the applicant engaged in an exchange of correspondence directly with the Convent who suggested that TUSLA may hold records as it is believed the applicant was placed in the convent "through the Courts". In its internal review decision, TUSLA's decision maker noted that it seemed unusual that no relevant records were contained in the archives of the Convent, given the length of the applicant's residency. However, he also noted that it appeared unusual that the then statutory authority for child protection services, the Southern Health Board, would not have had an involvement with the applicant during her stay, although he further noted that the applicant's placement may not have involved Social Work Services, given the possible placement by the courts.

Nevertheless, TUSLA carried out detailed searches for relevant records. As I have explained above, the details of TUSLA's relevant records management practices and the searches undertaken to locate relevant have already been provided to the applicant. Therefore, I do not propose to repeat those details in full here. What follows is a summary of TUSLA's submissions.

In relation to records management, TUSLA stated that the policy and practice at the time was to retain files indefinitely. It also explained that files of the kind sought are held either within the Social Work Department or in archives and that both of these locations were considered. It stated that manual and computer-based searches were conducted, based on names provided by the applicant, the family name of the applicant's mother, and a family address.

TUSLA stated that during the relevant period, where referrals were made to Social Work, files tended to be created for a family rather than for an individual child. It also explained that in the 1970s and 1980s the primary records were hardcopy files and it was not practice to create duplicate files. It further stated that during that period the central records for cases involving social work were Alphabetical Index Cards containing entries created under family names, and that cases subject to ongoing and current social work would have been held within each Social Work Department. When cases were closed, arrangements were made for archiving and at present, historical hardcopy files are stored in a secure external location. A database of all files archived in the external facility has been established.

The applicant informed this Office that her family's address during her residency in the Convent was in Cork. Tusla stated that all the key organisational units in Cork were searched, namely: North Lee Social Work Department; South Lee Social Work Department; North Cork Social Work Department; West Cork Social Work Department; Foster Care Service Department (Cork area-wide service); Child Care Information Unit (Cork area-wide service).
In relation to any potential destruction of records, Tusla stated that there is nothing to indicate that relevant records have been destroyed or that there was a policy of destruction of personal records created within Social Work. It is very unfortunate that no relevant records have been located and the applicant will, understandably, be disappointed with such an outcome. Nevertheless, the question I must coinsider is whether TUSLA has carried out all reasonable searches for relevant records. In my view, it has. In the circumstances outlined above, I am satisfied that TUSLA was justified in its decision to refuse the applicant's request on the ground that no relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

For the sake of completeness, I note that according to TUSLA, while the residential services were operated by the Good Shepherd Congregation, funding for such services at the time may have involved three sources of funding, namely the Department of Education, the Department of Health and/or a local authority. It stated that it was not until 1984 that responsibility for all residential services came under the aegis of the Department of Health. While there is no evidence before me that it may prove useful, the applicant may wish to consider contacting the relevant local authority or the Department of Education and Skills to determine if they might hold relevant records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of TUSLA 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