Case number: OIC-53279-W5M1Y2 (190005)
28 November 2019
The applicant in this case has been represented by solicitors at all stages of the FOI and review process. Accordingly, all correspondence issued by the solicitors in question are described in this decision as having been sent by the applicant.
According to the applicant, her birth was illegally registered in that her adoptive parents were registered as her natural parents. On 30 October 2018, she sought from TUSLA all documentation relating to her birth and adoption and relating to her natural parents and all correspondence relating to her birth adoption and her natural parents. On 27 November 2018, TUSLA part-granted the request, refusing some records in whole or in part under sections 35(1)(a) and 37(1) of the FOI Act.
The applicant sought an internal review of that decision, following which TUSLA affirmed its original decision. On 2 January 2019, the applicant sought a review by this Office of TUSLA's decision. She drew attention in particular to the fact that all identifying information relating to her natural parents had been withheld.
I have now decided to bring this review to a conclusion by way of a legally binding decision. In conducting this review, I have had regard to the correspondence between the applicant and TUSLA as outlined above, and to the correspondence between this Office and both the applicant and TUSLA on the matter. I have also had regard to the contents of the records at issue.
This review is concerned solely with whether TUSLA was justified in refusing access to certain records and information relating to the applicant under sections 35(1)(a) and 37(1) of the FOI Act.
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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant 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).
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by the body as confidential.
Having examined the records at issue, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant or personal information relating to the applicant that is inextricably linked to personal information relating to other individuals (i.e. joint personal information). I find, therefore, that section 37(1) applies to the information sought.
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of those circumstances arise in this case. That is to say (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
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 individuals 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 considering the public interest test at section 37(5)(a), 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''). In that judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).
The applicant argued that TUSLA essentially found that the right of a parent to protect their identity outweighed the right of the child to know who its natural parents were. She argued that TUSLA did not in any way consider the child’s rights under natural justice. She cited a decision of the European Court of Human Rights in the case of Godelli v Italy (application No. 33783/09) in support of her argument.
The applicant also argued that comments of the Supreme Court in the Rotunda case in respect of the public interest were obiter and should not be relied upon and that as no legal arguments were advanced as to the competing rights in either the High Court or the Supreme Court, the Supreme Court’s observations were made in a vacuum. She argued that the Supreme Court failed to distinguish between the private application and the public interest and that it did not have the Godelli judgment available at the time of its judgment.
The applicant further argued that it is a matter of public policy and public interest under the International Convention of the Rights of the Child that everybody is entitled to know their origins and that this is very much a matter of public interest. She noted that the Convention has been adopted by the State. She argued that the interest of the child, as a matter of both public policy and public interest, to know its origins outweighs the interests of the natural parents in keeping those origins a secret. She further argued, given that manner of the registration of her birth, that “the State should not condone the illegality involved in forging the birth certificate.”
I should say at the outset that the Godelli case is, in my view, distinguishable from the facts of this case. The Godelli case was concerned with a consideration of the legislative provisions in Italy relating to access to personal origins and the manner in which the relevant legislative provisions were implemented. The Court found that the Italian law did not attempt to strike any balance between the competing rights and interests at stake.
This review is not concerned with the Irish law relating to access to origins information. Rather, it is concerned more generally with access to information rights as provided for in the FOI Act. It is also noteworthy that while the purpose of the Act is to enable members of the public to obtain access to information in the possession of public bodies to the greatest extent possible, such access must be consistent with the public interest and the right to privacy.
On the matter of the applicant’s comments concerning the Rotunda case, while this Office fully accepts that the views of the Supreme Court on the question of the public interest were obiter, this does not mean that this Office cannot have regard to them. This Office accepts the comments of the Supreme Court that the public interest would require a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law.
It is important to note that the actual or perceived reasons for a request must generally be disregarded in deciding whether to grant or refuse an access request under the FOI Act (section 13(4) refers). Thus, this Office considers that the reasons for a request are relevant only in so far as they reflect or overlap with what may be regarded as a true public interest.
Furthermore, under FOI records are released without any restriction as to how they may be used and as such, FOI release is regarded, in effect, as release to the world at large. Normally, therefore, privacy rights will be set aside under FOI only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting the right to privacy.
In considering where the balance of the public interest lies as provided for in section 37(5)(a), any decision to grant access would be on the basis that there is an overriding public interest in the release of the information that outweighs the privacy rights of the third party individuals concerned. In the circumstances, I consider it appropriate to regard any release of the records concerned as being effectively, or at least potentially, to the world at large.
The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. Under section 11(3), public bodies performing functions under the Act are required to have regard to, among other things, the need to achieve greater openness in their activities, to promote adherence by them to the principle of transparency in government and public affairs, and to strengthen their accountability and to improve their decision making.
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 records in this case. It would appear 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 information sought outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. In my view, release of the records and 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 individual concerned. I find, therefore, that section 37(5)(a) does not apply.
In the circumstances, I find that TUSLA was justified in its decision to refuse access to the redacted information sought by the applicant under section 37(1). It is not necessary, therefore, for me to consider whether any of the withheld information is also exempt under section 35(1)(a).
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm TUSLA’s decision 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.