Whether TUSLA was justified in deciding to refuse access to records relating to statements made about the applicant on the ground that the records are exempt from release under section 37 of the FOI Act
22 May 2019
On 22 November 2018, the applicant made an FOI request to TUSLA for information relating to statements made about him. TUSLA did not issue a decision within the statutory time-frame. On 15 January 2019, the applicant requested an internal review of the "deemed refusal". Once again, TUSLA failed to issue a decision within the statutory time-frame. By letter dated 5 March 2019 it issued a decision, in which it granted access to some information and refused access to the remaining records on the ground that they were exempt under section 37 of the FOI Act. The applicant had already applied to this Office for a review of TUSLA's decision, on 4 March 2019.
In conducting my review, I have had regard to the correspondence between the applicant and TUSLA and to the correspondence between this Office and both parties, as well as to the contents of the withheld records that were provided to this Office by TUSLA for the purposes of this review.
Scope of the Review
This review is concerned with whether TUSLA was justified in refusing access to the withheld records under section 37 of the FOI Act. TUSLA scheduled three files with 324 pages. However, they contain a large number of duplicates and accordingly, there is a great deal of repetition of content.
For completeness, I should note that the applicant's FOI request included certain questions. Section 11 of the FOI Act provides for a right of access to records held by FOI bodies. Requests for information or for answers to questions posed are not valid requests, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.
Before considering the exemptions claimed, I wish to note the following points. First, with certain limited exceptions (e.g. section 37(2) and 37(8), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner  IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Secondly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicant's reasons insofar as they might be construed as a public interest argument.
Finally, section 18 of the FOI Act provides that if it is practicable, a request may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Analysis and Findings
Section 37 - Personal information
TUSLA claims section 37 over the withheld records.
Sections 37(1) and 37(7)
Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. 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 fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include information relating to an individual's financial affairs, age, and welfare entitlements.
Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.
The records contain the names, addresses, telephone numbers and dates of birth of individuals other than the applicant. They also include information relating to the financial history and welfare entitlements of individuals other than the applicants. Moreover, they contain certain information about individuals which I accept would, in the ordinary course of events, be known only to the individual or his/her family or friends and which is held by a public body on the understanding that it would be treated as confidential. I say this in view of the highly sensitive nature of the information concerned. Accordingly, their release would involve disclosing personal information relating to individuals other than the applicants.
In theory, one could extract certain words or phrases from the records which relate solely to the applicant. However, those words and phrases appear in the context of other information which relates to third parties. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. I therefore find that the records are exempt from release under section 37(1) of the FOI Act. This finding is subject to the provisions of sections 37(2) and 37(5), which I examine below.
Section 37(2) of the FOI Act 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 to the records. That is to say, (a) they do not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I am then required to consider section 37(5) as it applies to the records.
Section 37(5) - The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.
In relation to the issue of the public interest, it is important to have 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  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.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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. Accordingly, when considering section 37(5)(a), privacy rights will 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.
As noted above, I am required to disregard the applicant's reasons for his FOI request. Therefore I can only take into account the purpose for which he seeks this information to the extent that he identifies a public interest. In Case 090261 (Mr P and the Health Service Executive & Our Lady's Hospital for Sick Children), the Commissioner found that a private interest in certain records cannot be construed into a public interest based on the requester's own motives for seeking access to the records. In FP v The Information Commissioner  IECA 19, the Court of Appeal approved this approach and held that the appellant's wish for access to records for his own purposes was his own private interest rather than a public interest. The applicant did not make written submissions to this Office, although he was invited to do so. Nonetheless, it is clear from his correspondence with TUSLA and a telephone conversation with the Investigator that he wishes to obtain access to the information so that he is fully aware of the content of statements made about him. In his internal review request, he refers to a court hearing and says that he requires the information prior to that hearing. I believe that the interests which the applicant identifies are more properly viewed as private rather than public. I must also bear in mind that release under the FOI Act is tantamount to release to the world at large. Accordingly, this is not a question of whether to disclose the records to the applicant for his own purposes. It is a question of whether to disclose the records to the world at large.
On balance, I do not consider that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the records relate. I consider that the records contain highly sensitive information, which is extremely personal to the third parties concerned. I believe that a significant invasion of privacy would occur if the records were disclosed to the world at large, which is the effective result of releasing records under FOI. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the third parties to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that TUSLA was justified in refusing access to the records under section 37(1) of the FOI Act.
For completeness, I should note that the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 do not apply in this review. In accordance with section 37(8) of the FOI Act, these Regulations provide for a right of access by parents or guardians to the personal information of individuals who, on the date of the request, have not attained full age and where the release of the information would, in the opinion of the public body and having regard to all the circumstances, be in the child’s best interests. However, they do not apply to records which contain personal information relating both to a minor and a third party, except where the third party is the requester. As the records in this case contain information relating to both to a minor and third parties other than the applicant, the Regulations do not apply.
Having regard to the above, I find that TUSLA was justified in refusing access to the withheld records under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I affirm TUSLA's decision under section 37 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.