Case number: 180079
12 June 2018
The applicant submitted a request to the HSE on 22 February 2017, which was subsequently forwarded to TUSLA on 14 March 2017, for records relating to her adoption including any information regarding herself or her biological family. On 19 June 2017, TUSLA decided to part grant the request and redacted certain information relating to individuals other than the applicant. The applicant sought an internal review of that decision on 29 June 2017. TUSLA wrote to the applicant on 9 August 2017 affirming its original decision to refuse access to information relating to third parties. The applicant was dissatisfied with TUSLA’s response, and on 22 February 2018 she sought a review by this Office of TUSLA’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between TUSLA and the applicant and to the communications between this Office and both the applicant and TUSLA on the matter. I have also examined the records at issue.
This review is solely concerned with whether TUSLA was justified in its decision to redact certain information from the records sought by the applicant under section 37 of the FOI Act.
TUSLA partially refused the applicant's request under section 37(1) of the FOI Act on the ground that the records sought contain personal information relating to third parties.
Personal information relating to the applicant
It was noted, during the course of the review, that a small amount of redacted information related solely to the applicant. As such section 37(1) cannot apply. In a submission to this Office, however, TUSLA stated that it was withholding this information under section 41(1)(a) of the FOI Act, on the ground that release is prohibited by the provisions of the Adoption Act 2010.
Section 41(1)(a) provides for the mandatory refusal of a request if the disclosure of the record sought is prohibited by any enactment, other than certain statutory provisions specified in Schedule 3 of the FOI Act. Section 86 of the Adoption Act provides for the keeping of an index by An tArd Chláraitheoir to make traceable the connection between each entry in the adopted children register and the corresponding entry in the register of births. Section 86(2) provides that the index shall not be open to public inspection and that no information from the index shall be given to any person except by order of a court or the Authority. I am satisfied that the particular information at issue is captured by the prohibition on release as set out in section 86(2) of the Adoption Act 2010 and that section 41(1)(a) of the FOI Act therefore applies.
Section 37(1) provides that access to a record shall be refused if granting access would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the FOI 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.
I would note that while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the redacted information and of the reasons for my decision is somewhat limited.
Having viewed the records, I am satisfied that they contain personal information of third parties, including the applicant’s biological parents. I find, therefore, that section 37(1) applies to the records sought. I will now consider whether any of the other relevant provisions in section 37 might serve to disapply the exemption in section 37(1).
Section 37(2) of the FOI Act 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 to the information which I have found to be exempt under section 37(1). Section 37(5) of the FOI Act 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.
It has not been argued that releasing the records would benefit the person 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 issue of the public interest, it is important to have 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  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. The applicant in her submission to this Office contended that there was a public interest in having access to any medical information that would indicate potential hereditary issues she might experience. However, in my view this is essentially a private interest, rather than a public one. The public interest at issue, therefore, is the public interest in ensuring the transparency and accountability of public bodies.
The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, 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.
Accordingly, when considering section 37(5)(a), privacy rights will 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 seems to me that the public interest has been served to some extent in this case by the release, or partial release, of the vast majority of the records that relate specifically to the applicant. TUSLA has attempted to strike a balance between making as much information as possible available to the applicant while seeking to protect the privacy rights of the third parties concerned.
The question I must consider is whether the public interest in releasing the remaining information sought outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. In my view, it does not. It seems to me that the release of the redacted and refused information will not enhance, in any significant way, the public interest in the transparency and accountability of TUSLA. On the other hand, release of the redacted information, in circumstances where release under FOI is, in effect, disclosure to the world at large, would involve a significant breach of the privacy rights of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply.
I therefore find that TUSLA was justified in refusing to grant the request under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of TUSLA in this case.
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.