Whether TUSLA was justified in refusing access to records relating to the applicant and third parties

18 May 2021

Background

The applicant was born in the 1940s and was adopted as a small child. She contacted TUSLA’s adoption information and tracing service in order to find her birth family. TUSLA carried out various searches and provided her with some information. On 7 August 2019, the applicant made an FOI request to TUSLA for access to her file. TUSLA’s decision of 3 February 2020 released some records in full and in part and withheld the remainder under section 37(1) of the FOI Act (personal information). The applicant sought an internal review on 17 February 2020. TUSLA’s internal review decision of 8 December 2020 affirmed its decision on the request. On 13 January 2021, the applicant applied to this Office for a review of TUSLA’s decision. During the review, TUSLA agreed to release a further record.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, TUSLA and the applicant as well as the contents of the records at issue. I have also taken account of the provisions of the FOI Act. I should also say that, at the time of concluding this review, I have not received any reply to this Office’s letter to the applicant of 25 March 2021.

Scope of the Review

The review is confined to the sole issue of whether TUSLA was justified under the FOI Act in refusing to fully grant the applicant’s request.

The review does not include correspondence between the applicant and TUSLA, which I understand she told TUSLA it need not consider. However, I note that TUSLA says it will provide copies of these records if the applicant wants them. In addition, the review will not consider those details that the applicant has been told were withheld in error from records 1, 10 and 11, which were released from other records.

Preliminary Matters

I acknowledge how very important it is to the applicant to trace her birth family. While I have great sympathy for her, I cannot direct TUSLA to grant her request on this basis. This is because section 13(4) of the FOI Act requires me not to take into account the applicant’s reasons for making her FOI request.

It is also relevant to set out the Commissioner’s position on the provision of records with exempt information redacted. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

TUSLA has granted partial access to some of the records. I acknowledge that this was intended to ensure that the applicant would get as much access to information concerning her family history as possible. I appreciate the importance that the applicant may attach to getting further access to even the briefest excerpts of any of the withheld records. However, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remainder of such records for the purpose of granting access to those particular sentences or paragraphs.

Finally, the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

Findings

Personal Information - section 37

TUSLA is relying on section 37(1) of the FOI Act in relation to the remaining withheld records and parts of records.

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential.

The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the medical history of the individual, (iii) information relating to the employment or employment history of the individual, (viii) information relating to the religion of the individual, (xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual and (xiv) the views or opinions of another person about the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the extent to which I can describe the withheld details, which I have examined. They concern searches carried out to locate the applicant’s birth family. I am satisfied that they comprise information of a type that meets the definitions of personal information and information captured by one or more of the examples of what comprises personal information about identifiable individuals.

As noted earlier, TUSLA has granted partial access to some of the records. I do not consider it feasible to extract any further excerpts. For instance, I am satisfied that, even without names, individuals would be identifiable from the context and content of other withheld details. In any event, I would not consider it to be in keeping with the Commissioner’s approach to section 18 to grant access to further parts of the records with third party information redacted.

All of the withheld information concerns and identifies parties other than the applicant. However, in the circumstances the records could be argued to relate also to the applicant and therefore contain what is generally called “joint personal information”. However, section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. I find that the relevant withheld records and parts of records are exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however.

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. The applicant does not argue that any of the circumstances are relevant in her case.

Section 37(2)(a) provides for the grant of access to personal information relating to the requester. Noting the details released by TUSLA in this case, I am satisfied that no further information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). Insofar as the withheld details comprise joint personal information, as outlined above, I do not consider that any further personal information relating to the applicant can be separated from that of other individuals. I have no basis on which to be satisfied that any of the remaining circumstances set out in section 37(2) arise.

Section 37(5)(a) - the public interest

In considering section 37(5) of the FOI Act, I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had 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] 1 IR 729, [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.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both 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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore 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 applicant is disappointed with the redaction of dates and also names, particularly those of her father and cousin. She says that her parents are deceased and, given her own age, that she wishes to piece together her own life before she dies. She says that she has suffered throughout her life and it is cruel that she cannot access this information when it is available to everyone in TUSLA. 

I sympathise with the applicant’s situation. I understand why it is so important to her to obtain access to the records. I accept that the disclosure of the remaining records and parts of records may give her additional insight into her family background. However, this is a private interest and not a public interest that I can take into account for the purposes of the FOI Act. I also accept that releasing the records would disclose details regarding TUSLA’s efforts to trace her family members i.e. regarding TUSLA’s performance of its functions in this regard. However, this does not mean that there should be no protection of privacy rights of other individuals. In this respect, the records concern inherently private and sensitive information about third parties.

It seems to me that TUSLA’s release of certain records in full and in part, attempts to strike a balance between the competing interests. I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. Having regard to the nature of the withheld information, I am aware of no public interest factors in favour of its release that, on balance, outweigh the right to privacy of the individuals to whom it relates. I find, therefore, that section 37(5)(a) of the FOI Act does not apply.

Section 37(8) – access by certain categories of persons to personal information of a deceased individual

Noting the applicant’s position that her parents are now deceased, I have considered the Regulations made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act. The Regulations (S.I. No. 218 of 2016 as amended by S.I. No. 558 of 2016) provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and, in the opinion of the head, 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. They do not entitle a requester to access to personal information about any other individuals.

This Office’s Investigator invited the applicant to comment on the relevance of the Regulations but this Office has not received any response from her. I have no role in determining the applicant’s relationship to any deceased parties referred to in the withheld records or if she is the next of kin of such parties. Having regard to all of the circumstances, it is my view that the public interest, including the interest in the confidentiality of the personal information, would on balance be better served by refusing than by granting the request. I therefore find that no right of access arises under the Regulations made under section 37(8) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA’s decision on the applicant’s FOI request of 7 August 2019. I affirm its refusal to grant access to the remaining records and parts of records under section 37(1) 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