Whether TUSLA was justified in refusing to grant access to certain information relating to the applicants and/or their son under section 37 of the FOI Act.
06 December 2018
On 6 January 2018 the applicants jointly submitted a request to the HSE for all records relating to themselves and their son held by TUSLA. On 7 June 2018 TUSLA issued a decision to one of the applicants, the mother, in which it decided to part-grant the request. It withheld certain information under section 37, including information relating to her partner and her son. It also refused access to one record under section 31(1)(a) on the ground that it is subject to legal professional privilege.
The applicants sought an internal review of that decision, following which TUSLA affirmed its original decision. On 20 August 2018 the applicants sought a review by this Office of TUSLA's decision. They stated that while the mother had received a decision, the father was informed that he would receive a separate response but that he had not yet received one. In the course of the review by this Office TUSLA informed this Office that they have subsequently sent a decision to the father.
I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to TUSLA's correspondence with the applicants as outlined above and to communications between this Office and both TUSLA and the applicants on the matter. I have also had regard to the contents of the records at issue.
Scope of Review
This review is concerned solely with whether TUSLA was justified in refusing to grant access to certain information relating to the applicants and/or their son under sections 31 and 37 of the FOI Act.
Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. In light of that requirement, the description I can give of TUSLA's submission and of the reasons for my decision are limited in this case.
Analysis and Findings
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. Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply, including where (a) the information concerned relates to the requester concerned or (b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester (subsection (1)(b)).
The records at issue in this case are held by TUSLA on a file it holds in relation to the applicants' son. As well as containing sensitive personal information about their son, it also contains substantial sensitive personal information relating to them and, indeed, to third parties.
Notwithstanding the sensitivity of the information contained in the relevant records relating to each of the applicants, the fact remains that they made a joint request for all records relating to themselves and their son. As such, by making a joint request, subsection (2)(a) serves to disapply section 37(1) in so far as the information contained in the records relates to either or both of the parties. Furthermore, while I see no issue with a public body advising joint requesters, in advance of processing a request, of the potential consequences of making a joint request and of the potential for the release of sensitive personal information to both parties, there is no provision in the Act that allows a public body to separate a joint request into two separate requests, regardless of any concerns it may have about the sensitivity of the information at issue.
That said, the records at issue also contain personal information relating to the applicants' son and, indeed, to other individuals. Much of the information is also personal information relating to either or both of the applicants which is intertwined with personal information relating to third parties, including their son. As such, various other provisions of section 37 are of relevance in this case.
Section 37(7) provides for the refusal of 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). Furthermore, regulations (Statutory Instrument No. 218 of 2016) have been made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act, which provide for access by parents and guardians to records of minors and certain others in certain circumstances.
Accordingly, I do not consider it appropriate to simply direct the release of the records to the applicants. Instead, I consider that the appropriate course of action is to annul TUSLA's decision and to direct it to make a new first instance decision in respect of the applicants' original request. The applicants will have a right to an internal review and a review by this Office if they are not satisfied with TUSLA's decision. I appreciate that remitting the case back to TUSLA causes further delay for the applicants. However, I do not believe that there is an alternative appropriate course of action to take in this instance.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul TUSLA’s decision to refuse the applicants' request for access to records relating to themselves and their son and I direct TUSLA to undertake a fresh decision-making process on the request.
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.