Case number: OIC-118383-G2R2L0
30 May 2022
This case concerns a request for records relating to the applicant’s grandfather, who is deceased. The records relate to his search for information about his biological family and his experiences within the institutional and foster care systems in Ireland. The applicant made two FOI requests relating to the same set of records.
In an initial request dated 11 September 2020, the applicant sought access to records held by Tusla relating to his grandfather. In a decision dated 21 June 2021, Tusla released a number of records in part, relying on section 37(1) of the Act to redact certain information. On 20 July 2021, the applicant sought an internal review of the decision. In a decision dated 12 August 2021, Tusla varied the original decision and released further information, relying on section 37(1) in respect of the remaining information withheld.
As this initial FOI process was nearing completion, the applicant provided consent from other family members to release further information contained in the records. Tusla suggested to the applicant that he submit the FOI request again, which would be dealt with in the context of the consent provided.
Accordingly, on 27 September 2021, the applicant made a second FOI request for records relating to his grandfather. He provided contact details in respect of the family members noted above. In a decision dated 2 December 2021, Tusla released additional information contained in the records at issue, on foot of the consent received from the other family members. It relied on section 37(1) in respect of the remaining information withheld. On 3 December 2021, the applicant sought an internal review of that decision. In its internal review decision dated 5 January 2022, Tusla affirmed its original decision, on the same grounds. On 20 January 2022, the applicant applied to this Office for a review of Tusla’s decision to refuse access to the records in full.
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 applicant’s comments in his application for review and further submissions to this Office as well as to the submissions made by Tusla 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.
Tusla identified 58 pages of records as coming within the scope of the applicant’s request. Information was redacted from a number of the records (pages 0002-0003, 0033-0037, 0042, 0047-0048, 0049, 0050, 0051, 0053, 0054, 0055 and 0056). The applicant argues that these records should be released in full, without any redactions.
Pages 0057 and 0058 are duplicates of pages 0002 and 0003. The duplicates were not released but having reviewed the records I am satisfied that they contain the same information as that on pages 0002 and 0003. As such, pages 0057 and 0058 will not be considered as part of this review.
Accordingly, this review is concerned solely with whether Tusla was justified in refusing access to the following records in part: 0002-0003, 0033-0037, 0042, 0047-0048, 0049, 0050, 0051, 0053, 0054, 0055 and 0056 under section 37(1) of the Act.
Section 37(8) of the FOI Act states that the Minister may provide by regulations for the granting of FOI requests where the individual to whom the records relate is dead. The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016), as amended by S.I. 558 of 2016, have been made by the Minister. During the course of the review, Tusla confirmed to this Office that it was satisfied that the applicant demonstrated his position as next of kin in relation to the records held. It stated that it was satisfied of the identity of the applicant in respect of the relevant Regulations.
I note that in his correspondence with this Office the applicant referred to aspects of his engagement with Tusla which he was unhappy with. It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. I acknowledge that Tusla has noted the difficulties that the applicant experienced during what it describes as a ‘protracted process in accessing information’ and has apologised to the applicant in this regard.
It is also relevant to note that 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.
Section 37(1) provides for the mandatory refusal of a request if granting access to the record sought would involve the disclosure of personal information relating to a third party, including a deceased individual. 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. The FOI Act details 14 specific categories of information that is personal, without prejudice to the generality of the foregoing definition. If the information at issue is captured by one or more of the 14 categories, this is sufficient for it to comprise personal information for the purposes of the Act. It is important to note that section 37(1) is subject to the other provisions of section 37, and those provisions must be considered before the request can be refused.
In submissions to this Office, Tusla said that while it seeks to release as much information within historical files as possible, it is of the opinion that the information withheld in the records at issue is personal information relating to people other than the applicant and his late grandfather. In his application and submission to this Office, the applicant made a number of arguments, many relating to the conduct of Tusla in dealing with his request. In essence, his position is that the withheld information should be released.
Having examined the relevant records, it seems to me that the information at issue is personal information relating to individuals other than the applicant, his late grandfather, and the other family members who had consented to the release of personal information. I am satisfied that all of the information redacted from the relevant records comprises information which falls within this category. It should be noted that certain information is particularly sensitive and relates to social work records. In all cases, the disclosure of the information at issue would also involve the disclosure of personal information relating to individuals other than the applicant and his late grandfather. Accordingly, I find that section 37(1) applies to the redacted information.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. Section 37(5) 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.
I see no basis for finding that the release of the relevant information would benefit the third parties 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 public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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. It is also relevant to note that 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.
I accept TUSLA’s submission that it endeavoured to strike a balance between making as much information as possible available to the applicant concerning his family while seeking to protect the privacy rights of the relevant third parties. I find no relevant public interest in granting access to the withheld information in this case that, on balance, outweighs the public interest in upholding the right to privacy of the third parties concerned. I find that section 37(5)(a) does not apply.
In conclusion, therefore, I find that TUSLA was justified in refusing to release the records concerned in part under section 37(1) of the FOI Act.
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. I find that it was justified in refusing access to the remaining information in the relevant records under section 37(1) of the FOI Act.
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.