Case number: OIC-119271-R4Y1M1
29 June 2022
On 19 April 2021, the applicant submitted a request to Tusla for access to all records relating to her and her son including two specific records which she believed might exist. On 22 June 2021, Tusla issued its decision. It identified 83 pages of records as falling within the scope of the request. It part-granted the request and withheld certain records in whole or in part under section 37 of the FOI Act (third party personal information). On 4 August 2021, the applicant sought an internal review of that decision, following which Tusla affirmed its original decision. On 8 February 2022, the applicant sought a review by this Office of Tusla’s decision.
I have now completed my review in accordance with the provisions of section 22(2). In conducting the review, I have had regard to the correspondence between Tusla and the applicant as described above, and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by Tusla in the schedule of records it prepared when processing the request.
In the course of the review by this Office, Tusla released further information from pages 1, 4, 5, 6, 8, 10, 13, 14, 15, 16, 19, 22, 52, 53, 56, 73, 74, 77, 78, 79, 81 and 83. It also released pages 17, 30, 36, 50 and 81 in full.
This review is concerned solely with whether TUSLA was justified in its decision to refuse access, under section 37 of the FOI Act, to the information that remains redacted from the records at issue.
Before I address the substantive issues arising, I wish to note the following points. First, with certain limited exceptions, 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' as the Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record maybe 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. This means that this Office 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.
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. 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 while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, any such personal information that is inextricably linked to personal information relating to parties other than the applicant is exempt. However, 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.
Section 2 of the 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. 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 and (xiv) the views or opinions of another person about the individual.
In submissions to this Office Tusla said that the remaining information in the records is either:
Pages 23-29, 31-35, 37-42, 43-49, 57, 60, 63, 67 and 70-71 of the relevant records relate to four separate referrals by the Gardaí to Tusla following interviews with the applicant. While I am satisfied that section 37 applies to much of the information in those records, I find that the disclosure of the following information would not involve the disclosure of personal information of third parties other than the applicant and/or the applicant’s son:
Apart from the specific information I have identified above, I am satisfied that all of the remaining information that has been redacted from the records is either personal information relating to individuals other than the applicant and her son, or personal information relating to the applicant and/or her son that is inextricably linked to personal information relating to other individuals (joint personal information). I find that section 37(1) applies to all such information.
I would add that while it may well be the case that some of the withheld information is generally known to the applicant, or indeed the information was given by the applicant herself to Gardaí, social workers or other individuals in the course of interviews, I must have regard to the fact that, as set out above, a record released under the FOI Act effectively amounts to disclosure to the world at large.
With regard to the information to which I have found section 37(1) to apply, I must now consider whether any of the other provisions of section 37 serve to disapply this exemption. 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 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), 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.
Having carefully considered the matter, 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 redacting, under section 37(1) of the Act, the information to which I have found section 37(1) to apply.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of Tusla in this case. I find that it was justified in redacting, under section 37(1) of the FOI Act, certain information from the records at issue, apart from the information to which I have found section 37(1) not to apply as described in the main body of the decision above. I direct that this information be released to the applicant.
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 requester 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.
28 June 2022