Case number: 170121
This review follows on from a previous decision of this Office in Case 160067. In that decision, issued on 21 November 2016, this Office directed TUSLA to carry out a fresh decision making process in respect of the applicant's request for certain statistical information relating to child sexual abuse allegations in Ireland, and statistics relating to allegations of child abuse (sexual and non-sexual abuse) in foster care. The request was broad and sought detailed information broken down into specific categories identified by the applicant.
It appears that TUSLA contacted the applicant by email on 23 December 2016, and informed her that the request might be refused under section 15(1)(c) in view of the voluminous nature of the request. It offered to assist the applicant to ensure that the request was not refused on that basis but it appears that the applicant did not take up this offer of assistance. Subsequently, on 17 January 2017, TUSLA issued a fresh decision on the request, in which it stated that it had decided to grant access to two sets of statistical data that it considered were the nearest match to the information sought. It refused access to any further records on the ground that no further relevant records exist. On 3 February 2017, the applicant sought an internal review of that decision, following which TUSLA affirmed its original decision. On 12 March 2017, the applicant sought a review by this Office of TUSLA's decision.
I consider that this review should now be brought to a close by a formal, binding decision. In conducting this review, I have had regard to correspondence between the TUSLA and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the TUSLA on the matter.
This review is concerned solely with whether the TUSLA was justified in refusing to grant access to further records coming within the scope of the applicant's request for statistics relating to allegations of child sexual abuse in Ireland since 2005 and statistics concerning allegations of child abuse (sexual and non-sexual abuse) in foster care since 2005, on the ground that no further relevant records exist.
It should be noted that while the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to a create record if none exists, apart from a specific requirement to extract records or existing information held on electronic devices. Section 17(4) provides that where an FOI request relates to data contained in more than one record held on an electronic device, the FOI body shall take reasonable steps to search for and extract the records, using any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course.
Section 15(1)(a) 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 role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
In its original decision, TUSLA provided the applicant with two sets of statistical data as follows:
i. a table of the number of child abuse referrals received per region per year for the years 2005 to 2016, including details of the number of those referrals that related to child sexual abuse, and
ii. a table of the number of "founded child protection and welfare concerns against a foster carer" per region for 2015 and for the first three quarters of 2016.
TUSLA refused access to any further records under section 15(1)(a) of the FOI Act, on the ground that no further relevant records exist.
Foster Care Statistics:
In a submission to this Office on 2 April 2017, the applicant provided links to a number of media articles which, she argued, support her view that further records should be available. One of the articles in question reported on the number of allegations of child abuse made against foster carers in two specific regions in 2010 and the nature of the abuse allegations. A second article referred to the number of founded child protection and welfare concerns against foster carers for 2015 and early 2016 and provided details on the nature of the abuse. The third article reported that TUSLA did not hold figures of the number of foster carers who have been de-registered. It reported the then Chief Executive of TUSLA as stating that the lack of figures on de-registered foster carers was an omission and, while local health areas would have the figures, they had not been collated nationally.
Ms Buckley of this Office asked TUSLA for its comments on the applicant's submission. In its response, TUSLA stated that it does not hold the data referred to in the media articles relating to foster carers and it suggested that the HSE may have gathered the data through non-routine collection procedures at the time. It stated that it proceeded with the processing of the applicant's request by ascertaining what statistical information it held nationally that would be the nearest match to her request. It stated that its national information analyst provided statistics for 2015 and 2016 being the only years where completed and valid data existed. It stated that TUSLA was only established on 1 January 2014 and that while a pilot programme was established during 2014 for collection of data, complete returns were not provided for all areas for the months the pilot was in operation. It stated that the details released of the number of founded child protection and welfare concerns against a foster carer were part of a suite of quarterly metrics relating to foster carers that was introduced to all 17 administrative areas in 2015 for collection, but that the metric does not include a breakdown component of the type of abuse.
In another submission, TUSLA stated that dedicated information officers within TUSLA are tasked with responsibility for collating foster care data from individual Foster Care Registers which are validated by local management prior to submission to the National Information Unit within the TUSLA Quality Directorate. Quarterly returns are provided from 17 administrative areas as part of this process. It stated that a complete set of data from the Foster Care Registers is available only for 2015 and 2016 and that incomplete data for 2014 would not be representative of activity for that year. TUSLA also stated that statistical data or "foster carers metrics" not been routinely collected for any year prior to 2014.
TUSLA provided this Office with a copy of the Foster Care Metrics return sheet used for collating relevant statistics. The return requires details of "The number of founded child protection and welfare concerns (as defined by Children First) against a Foster Carer during the reporting period as presented to the Foster Care Committee" and "The number of Foster Carers who have had a child removed from their care, as a result of a founded child protection and welfare concern, during the reporting period". The return does not require the administrative areas to provide the type of detailed information sought by the applicant.
It may be that the information required by the applicant is available in individual case files across the 17 administrative areas. However, in the particular circumstances of this case, I am satisfied that to require TUSLA to provide the information sought would require the creation of a new record. As I have explained above, the Act does not require FOI bodies to create records for the purpose of responding to a request if none exist.
I note that TUSLA has already provided the applicant with details of the number of founded child protection and welfare concerns against a foster carer per administrative area for 2015 and for the first three quarters of 2016. However, it did not release the record of the returns for 2014, a copy of which was provided to this Office. Its argument for doing so is that the record is incomplete. The fact that it may be incomplete does not, of itself, provide a basis for refusing access to the record. It is open to TUSLA, when releasing the record, to provide an explanation of why the information contained in the record is incomplete.
In conclusion, therefore, I find that TUSLA was not justified in refusing access to the record of the 2014 foster carer metrics but that it was justified in refusing access to any further relevant records relating to the foster care statistics sought on the ground that no such records exist or can be found.
Following a request by Ms Buckley of this Office for clarification about the nature of the statistical information about child abuse allegations that may have been collected by other bodies prior to TUSLA's establishment in 2014, and which TUSLA may now hold, TUSLA explained that data returns for 2005 were compiled by the then Department of Health and Children on its IT database as part of its interim child care database and that data relating to the number of child abuse referrals for the period 2006 to 2014 was collected by the former Children's and Family Directorate within the HSE. It noted that there was no metric as part of the routine statistical collection that returned "allegations" of abuse, but rather "referrals" of abuse. It explained that from 2012 onwards data was returned nationally using the NCCIS standardised business process and that data prior to 2012 is not comparable for variances, trends etc. It further stated that there is no metric as part of the routine statistical collection that returns the type of person against whom the referral is made, e.g. foster carer.
In summary, TUSLA's position is that it holds data relating to the number of child abuse referrals that was previously collected by the former Children's and Family Directorate within the HSE. In response to the applicant's request, TUSLA's information analyst created a document which complied the national summary sheets on child abuse referrals received per region per year for the period 2005 to 2016, including details of the number of those referrals that related to child sexual abuse. This record was released to the applicant on 17 January 2017 along with the original decision. TUSLA stated that this data is also publically available through the "Review of Adequacy" Reports for each of the years 2005 to 2016.
Having considered the submissions of the applicant and TUSLA, I find that TUSLA was justified in its decision to refuse access to further relevant records on the basis that no such records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of TUSLA and direct the release of the record of the 2014 foster carer metrics.
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.