Case number: OIC-125408-M1S0N9, OIC-125427-T5N1T7
04 January 2022
The applicant has sought reviews of Tusla decisions in two related FOI requests. As the same issue arises in both reviews, I have dealt with them together. In her first request dated 25 March 2022, the applicant sought her Parental Capacity Assessment Report. In a decision dated 4 April 2022, Tusla refused the applicant’s request under section 32(1)(a)(i) of the FOI Act. On 29 April 2022, the applicant requested an internal review of Tusla’s decision. On 20 June 2022, Tusla affirmed its original decision. On 22 June 2022, the applicant applied to this Office for a review of Tusla’s decision.
In her second request dated 12 April 2022, the applicant sought social work records for her two daughters from September 2021 to 12 April 2022. In a decision dated 16 May 2022, Tusla refused the applicant’s request under section 32(1)(a)(i) of the FOI Act. On 20 May 2022, the applicant applied for an internal review of Tusla’s decision. On 20 June 2022, Tusla affirmed its original decision. On 22 June 2022, 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 comments made by the applicant in her application for review and to the comments made by the FOI body in the course of the review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether Tusla was justified in refusing access to records falling within the scope of the applicant’s request.
The applicant states that Tusla refused both of her requests under section 32(1)(a)(i) of the FOI Act on the basis that there is a criminal investigation underway and the records, if released, may compromise the integrity of the investigation and/or criminal trial. The applicant states that she is not involved in any criminal investigation, she is not on trial nor is she a witness in a trial. She states that all Tusla social work records for both her daughters were sent to her in 2021. She states that when she applied for the most recent records, they were refused and she contends that this makes no sense as no criminal charges have been brought against her. The applicant states that her solicitor already has a copy of her Parental Capacity Assessment Report and she has had a feedback meeting regarding the results of the assessment. She contends that there are no reasonable grounds to stop her receiving her own information or her daughters’ information.
On acceptance of the applications for review, this Office asked Tusla to provide copies of the subject matter records for both cases. In reply, Tusla’s FOI Officer stated “there are very complex issues associated with these requests, including the involvement of the DPP and the awaiting of a trial date in view of serious offences having been committed. I have been advised also that records are currently being gathered and it is anticipated that a significant number of these exist. We hope to be in a position to established the numbers involved sometime next week. In view of the issues arising, we would appreciate if we could work directly with the Investigator involved”
This Office contacted Tusla and stated that as it was still gathering the records and it did not know the number of records involved, it is clear that it had not gathered the records for the purposes of examining them when it made its original and internal review decisions on them between April and June 2022. This Office noted that if Tusla were to provide the records at this stage for the purposes of the review, this Office would essentially be conducting a first instance decision on the records and not a review. It noted that the role of this Office is to review decisions taken by FOI bodies on requests, not to effectively act as a first instance decision maker. In reply, Tusla said it noted the points made and it stated that, in the circumstances, it was agreeable to re-examining both requests with a view to making a new first instance decision on the records.
In the circumstances, I consider that the most appropriate course of action to take is to annul Tusla’s decisions in their entirety, the effect of which is that Tusla must consider the applicant’s FOI requests afresh and make new first instance decisions in accordance with the provisions of the FOI Act following an examination of the records at issue. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with Tusla’s decisions.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul Tusla’s decision to refuse the applicant’s request for her Parental Capacity Assessment Report and her daughter’s files from September 2021 to the date of her request. I direct Tusla to conduct a fresh decision-making process on the applicant’s FOI requests.
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.