Case number: OIC-117087-Z5X5L5
4 May 2022
In a request dated 26 August 2021, the applicant sought access to records held by Tusla relating to her and her engagement with named social workers in a particular area in the 1970s and 1980s. In an email from Tusla on 19 October 2021, she was informed that the original files did not appear to be where they should be and that only approximately 50 records had been found. She was told that the Data Protection Unit had been notified and that a breach was being processed under GDPR and would be notified to the Data Protection Commission. In relation to the records that had been located, she was told that these would be processed and issued to her subject to redactions under the FOI Act; however, she was also informed that there was backlog in relation to FOI requests and there would likely be a further delay.
On 26 November 2021, the applicant sought an internal review of the deemed refusal of her request as she had not received a decision at that stage. On 2 December 2021, Tusla part-granted the request. In the schedule of records issued with the decision, it referred to 51 pages of records and listed 20 of them as being refused under section 37(1) and/or 37(7) of the FOI Act, and five as being outside the scope of the request. Although they were not listed in the Schedule, it released two pages of records in full, and 26 in part, with redactions made under sections 37(1) and 37(7). On 8 December 2021, the applicant applied to this Office for a review of Tusla’s decision.
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 submissions made by Tusla and by the applicant, further communications between this Office and the parties involved, as well as to the correspondence set out above. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Five of the records were refused as they were deemed outside the scope of the request by virtue of containing no reference to the applicant. Having examined these records, I am satisfied that they do not fall within the scope of the applicant’s FOI request. They relate solely to an individual other than the applicant in respect of a matter that does not involve the applicant. Accordingly, I have excluded records 45, 46, 48, 49 and 50 from this review.
The applicant is not satisfied with the redactions in the records that were released to her, nor is she satisfied that all relevant records were located and considered for release. Accordingly, this review is concerned with whether Tusla was justified in its decision to withhold certain records, in whole or in part, under section 37 of the FOI Act, and whether it was justified in refusing to release any additional records under section 15(1)(a) of the FOI Act on the ground that no further relevant records could be found.
Firstly, I should acknowledge at the outset that the records at issue in this case contain information of a highly sensitive nature concerning the applicant and other members of her family. While I can fully appreciate the applicant’s desire to access the records, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Secondly, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. For this reason, the description I can give of the records at issue and of the reasons for my decision is somewhat limited.
Thirdly, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner 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.
Lastly, it is important to note that release of records under the FOI Act is regarded, in effect, as release to the world at large given that the Act places no restrictions on the uses to which records released under FOI may be put. This is in contrast with, for example, a court order for discovery, where records are released subject to an undertaking that they are to be utilised solely for the purposes of the legal proceedings in question and no further use or passing-on is allowed.
Schedule and numbering of records
As noted above, the Schedule of Records only listed records that were refused in full and did not include records that were released in full or in part. The Investigating Officer sought clarification on this in her request for focused submissions but no response was received. In the set of clean records provided to this Office, there is a rolodex card and then 50 further pages labelled 1 – 50. The rolodex card is not numbered. However, in the Schedule and in the submissions from Tusla, the records are referred to as 1 – 51 with record 1 indicating the rolodex card. This inconsistency made the process of reviewing the records and cross-referencing against the submissions more time-consuming and confusing than was necessary.
I have adopted the numbering used on the unredacted records themselves and identified the rolodex card as record 0. This means that, for example, when I refer to record 5, I mean the record with a handwritten label of 5 but that is referred to as record 6 in the Schedule and in Tusla’s submissions.
I urge Tusla to ensure that its decision makers are familiar with the guidance and supporting documentation available on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform. Such documentation includes a detailed manual for processing requests which contains, amongst other things, a sample schedule of records and guidance on preparing schedules.
Section 37 – Personal Information
Tusla refused access, under section 37 of the Act, to records 0, 2, 4 -9, 11-16, 21, 24, 29 -31, and 47 in full; and to records 1, 3, 10, 17-20, 22-23, 25-28, 32 -36, and 39-44 in part. Section 37(1) of the FOI Act 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, including personal information relating to a deceased individual. 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).
In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (xii) the name of the individual where it appears with other personal information relating to the individual or where the 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.
Certain information is excluded from the definition of personal information in section 2. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).
The records at issue relate to the applicant, her parents, her siblings and other members of the extended family. Mindful of the provisions of section 25(3), I cannot provide a detailed description of the records. However, I can say that they generally comprise records of the family’s engagement with social workers throughout the 1980s, following the death of the applicant’s mother. Tusla said it endeavoured to release records to the greatest extent possible having regard to section 18 of the Act, together with the provisions of section 37(1). It said that in many cases it was not possible to separate the applicant’s details from other third parties in a meaningful way.
Having examined the withheld information, I am satisfied that, with certain limited exceptions identified below, it comprises either personal information relating solely to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to personal information relating to other identifiable individuals i.e. joint personal information. I am satisfied that the release of any or all of the redacted information would involve the disclosure of personal information relating to individuals other than the applicant. While it may be the case that a considerable amount of the withheld information is generally known to the applicant, or indeed that the information was given by the applicant to social workers herself in the course of interviews etc., I must have regard to the fact that a record released under the FOI Act effectively amounts to disclosure to the world at large. Moreover, I am satisfied that the release of much of the information would involve the disclosure of personal information relating to identifiable individuals, even if they are not expressly named in the various parts of the records.
In the circumstances I find that section 37(1) applies to the information withheld by Tusla, apart from the following limited specific information:
In relation to the information to which I have found section 37(1) to apply, that is not the end of matter as section 37(1) is subject to the provisions of subsections (2) and (5).
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 provided for in section 37(2) apply to the information concerned. That is to say, (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 their 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) 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 information would be to the benefit of the person to whom the information relates. There is no evidence to suggest that the persons to whom the information relates would benefit by its release and I find that section 37(5)(b) does not apply in this case.
As to whether section 37(5)(a) applies, the question I must consider is whether the public interest in releasing the information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. 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  1 I.R. 729,  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.
In considering 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 also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors  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.
As noted above, I am required to disregard the applicant's reasons for her FOI request. Therefore, I can only take into account the purpose for which she seeks this information insofar as it could be construed as a public interest. Having regard to the content of the records and to the Investigating Officer’s communications with the applicant in which she provided further background and context to the records, I appreciate why the applicant wishes to have access to a complete copy of the records. I can also understand her frustration when the records include notes of interviews that she herself gave, and when the names and other details of third parties involved are already familiar to her. I have a lot of sympathy for the applicant and her position. However, I am bound to treat her interest in seeking access to this information as a private rather than a public interest.
Having carefully considered the matter, given the strong public interest in protecting the right to privacy and given, in particular, the inherently sensitive nature of the information at issue, I find no relevant public interest in granting access to the remaining withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information relates. Accordingly, I find that Tusla was justified in its decision to refuse access to the withheld information under section 37(1) of the Act.
Section 15(1)(a) – Adequacy of search
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
In its submissions to this Office, Tusla stated that it accepted that further records relevant to the applicant’s request should exist. It said, however, that despite carrying out extensive searches, it hasn’t been possible to locate these records. It confirmed that on 15 October 2021 it notified the Data Protection Commissioner that the records were missing, as this constituted a personal data breach.
Tusla provided this Office with a description of the searches it undertook to locate records relevant to the applicant’s request, details of which were provided to the applicant during the review. Therefore, while I do not propose to repeat the details in full here, I can confirm that I have had regard to those details in full and to the applicant’s response. In summary, Tusla said at the time the records were created, they would have been in hard copy only and stored in a filing cabinet in a named hospital. The rolodex card indicates that the records were sent to the archives in January 1994; this would initially have been on-site storage and then later they would have been transferred to off-site storage at Iron Mountain, an off-site storage company used by Tusla. It said that it carried out searches at Iron Mountain, which contains thousands of archived files, using the applicant’s name, date of birth, address, and both her parents’ names but no relevant files or reference to any relevant files were found. It recalled a number of files that were listed under the same surname as the applicant but had no other identifying information. Having reviewed these recalled files, none of them related to the applicant. Tusla speculated that the records could have been sent to Iron Mountain with other records and inadvertently misfiled, but said that it has no way of confirming this without reviewing all the records stored there which is not possible given the volume of records involved. Tusla told the applicant in October 2021 that it intended to carry out an archiving audit in early 2022 and that it would contact her if the records were located.
Tusla said that it also checked a number of historic databases but found nothing apart from a reference to the file being opened in the 1970s. It contacted the HSE who had dealt with a previous FOI request (prior to files being transferred to Tusla), and it was here that the 51 records listed in the schedule were located. Physical searches were carried out in various HSE offices in the relevant location and filing cabinets checked, and an email issued to all relevant staff asking them to check their files. However, nothing further was found.
The applicant was not satisfied with Tusla’s response. She queried whether it had actually carried out the searches as described and asked would this Office request an affidavit from Tusla swearing that it had. The Investigating Officer explained that reviews undertaken by this Office under the FOI Act are inquisitorial in nature, with procedures that are generally informal and that requiring affidavits was not part of the procedures. The applicant stated that she understood from interactions with a named person in the HSE in 2016 that there were two files, one containing the 51 records that have been identified further to the 2021 request and another file.
Tusla has not denied that further records exist and I am particularly cognisant of the fact that it has notified the Data Protection Commission of a loss of records. It is understandable that the applicant is distressed that records related to her and her family appear to be missing, particularly given the sensitive nature of the records. However, the only question before me is whether Tusla was justified in refusing access to further records on the ground that they cannot be found after all reasonable steps to ascertain their whereabouts have been taken. While the situation is extremely regrettable, it seems to me that at this point Tusla has taken all reasonable steps to try to locate the records.
Accordingly, I find that it was justified in refusing access to the applicant’s request for further requests on the ground that no further records can be found.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary Tusla’s decision. I find that Tusla was justified in refusing access to the vast majority of the information withheld from the records considered for release under section 37 of the FOI Act, other than the following information, that I direct for release:
I also find that it was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records on the grounds that no further records can be found.
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 by the requestor not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.