Case number: OIC-55208-D8L9C5
I find that section 37(1) of the FOI Act applies to the withheld parts of the records. This is subject to the consideration of sections 37(2) and (5), however.
Section 37(2) - exceptions to section 37(1)
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. I am satisfied that some of the withheld personal information relating to the applicant is inextricably linked to personal information relating to other identifiable individuals. Section 37(7) provides that, notwithstanding section 37(2)(a), a record shall be refused where access to it 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. Accordingly, I am satisfied that section 37(2)(a) does not apply in this case. I am also satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) - the public interest
In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of 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 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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.
Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case") which was subsequently upheld by the Supreme Court [NOTE: this should read "Court of Appeal"], said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”
The applicant says that she lost her job with TUSLA as a result of information in a particular report. She says that she was not informed prior to being dismissed and was not given any right of reply to the report, made aware of any investigation, or given any information about this further to her FOI request. She says that she has not been able to get a job since, that her life is destroyed and that she needs access to the records in order to get the answers that she has been looking for.
While I sympathise with the applicant, it is not appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on this basis. It is clear from the Rotunda and F.P. cases that I cannot take into account her private interests in the grant of access to the withheld information.
Neither is it appropriate for me to direct TUSLA to grant access to the withheld parts of the records on the basis of assertions to the effect that its actions in relation to the applicant may have been unfair. As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
In this case, there is a public interest, recognised by the FOI Act, in establishing that TUSLA carried out its functions, including in relation to the applicant, in a way that was consistent with the principles of natural and constitutional justice. It is entitled to significant weight in this case. While this public interest has been served to some extent by those records and parts of records that have been released further to the applicant's FOI request, I accept that it would be further served if access to the requested records was granted in full.
On the other hand, 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). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. I am satisfied that placing the withheld excerpts in the public domain would significantly breach the rights to privacy of individuals other than the applicant.
I find that the public interest in favour of granting access to the withheld parts of the records does not outweigh the public interest that the right to privacy of individuals other than the applicant should be upheld.