Whether TUSLA was justified in its decision to refuse access, in whole or in part, to certain records containing references to the applicant under section 37 of the FOI Act
11 June 2019
On 21 November 2018 the applicant made a request to TUSLA for copies of all records of complaints and all records held in storage with his name on them. On 21 December 2018 TUSLA issued a decision in which it part granted the applicant's request. Of the 12 pages it identified as coming within the scope of the applicant's request, it granted partial access to two pages and refused access to the remaining 10 pages under section 37(1) on the ground that they contain personal information relating to third parties and/or joint personal information relating to the applicant and third parties. On 4 January 2019 the applicant sought an internal review of that decision. As TUSLA failed to issue a decision within the statutory time-frame, the applicant wrote to TUSLA again on 28 February 2019. By letter dated 4 March 2019, TUSLA issued its internal review decision in which it varied the original decision. It released a small amount of additional information from page 2 and identified one further relevant record to which it granted partial access. On 7 March 2019 the applicant sought a review by this Office of TUSLA's decision.
I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between TUSLA and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and TUSLA, and to the contents of the records at issue.
Scope of Review
This review is solely concerned with whether TUSLA was justified in refusing access to the information at issue under section 37 of the FOI Act.
It is important to note that, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent to disclosure of exempt material. This means that the description which I can give of the withheld records and of the reasons for my decision is somewhat limited.
Analysis and Findings
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 (commonly known as joint personal information).
Having reviewed the records at issue, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals (i.e. joint personal information relating to both the applicant and a third party or third parties). Accordingly, I find that section 37(1) applies to such information.
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 personal information relating to third parties. 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. 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.
Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case, namely (a) the information contained in the records does 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 at issue 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.
Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (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 of the information would be to the benefit of the person to whom the information relates. It has not been argued that releasing the information at issue would benefit the third parties to whom the information relates, nor do I believe that this would be the case. I am therefore satisfied that section 37(5)(b) does not apply to the relevant records.
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.
In considering where the public interest lies, 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  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 acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, 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. 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 information at issue in this case is of a very sensitive and inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put, I find that the public interest in granting access to the records does not, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, therefore, I find that TUSLA was justified in refusing access to the withheld information under section 37 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TUSLA to refuse access to the information at issue 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.