Case number: OIC-117903-D5X5D7
19 May 2022
In a request dated 3 March 2021, the applicant sought access to personal records concerning housing conditions in the form of public health notes, and housing reports from Tusla. On 13 October 2021, Tusla issued its decision in the matter part granting the request, and refusing access to certain information and records under sections 37(1), 37(7) and 42(m)(i). On 12 November 2021, the applicant submitted a request for internal review. The appeal argued that the heavy redaction was a disproportionate denial of access to records to relatives of an infant victim, and that the granting of partial access to records only renders the records unintelligible. In the final decision issued by Tusla, it affirmed its original decision to partially grant access to the records. On 7 January 2022, the applicant sought a review from this Office of Tusla’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the applicant and Tusla, as outlined above, to Tusla’s focused submissions on the matter and to the correspondence between this Office and both parties on the matter.
The review is concerned solely with whether Tusla was justified in refusing access to the records sought under the provisions of the FOI Act.
Section 37(1) of the FOI Act provides for the refusal of a request where the body considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. I accept that the disclosure of the records at issue in this case would involve such a disclosure.
However, section 37(8) provides that, notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual, to whom the record concerned relates is deceased. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). The 2016 Regulations provide that notwithstanding section 37(1), a request may be made for records which involve the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where the requester belongs to one of a number of classes, including the following:
"... the requester is the spouse or next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request".
The records in this case relate to the applicant’s family, including the applicant’s deceased sister. Next of kin is defined in the regulations as including; brothers and sisters of the person to whom the record relates. I note that Tusla has not considered the applicability of the Regulations when processing the applicant’s request.
In the circumstances, I consider that the appropriate course of action is to annul Tusla’s decision and direct it to undertake a fresh decision-making process, having due regard to section 37(8) and the provisions of the 2016 Regulations.
For the benefit of the applicant, the Central Policy Unit of the Department of Public Expenditure and Reform has published guidance on the application of S.I. 218 of 2016, available at https://foi.gov.ie/download/cpu-notice-25-access-to-records-relating-to-deceased-persons-prepared-under-section-378-of-the-freedom-of-information-act-2014/. The Guidance states that in order to establish his or her claim to be the next of kin of the deceased, the requester would be required to submit an affidavit or other acceptable proof establishing the relationship and showing the necessary State certificates.
It is also important to note that the mere fact that a requester may be the next of kin does not, of itself, mean that the requester is automatically entitled to access the records of the deceased. As I have outlined above, when considering such a request, the public body must consider whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul Tusla’s decision in this case. I direct it to undertake a fresh decision making process in respect of the applicant’s request, having due regard to the provisions of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016.
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.