Whether TUSLA was justified in deciding to refuse access to a report relating to the applicant under section 31 of the FOI Act
18 September 2018
The applicant made a request to TUSLA for access to any information relating to herself and her son/family. TUSLA did not make a decision within the statutory time frame and so the applicant's request was treated as a "deemed refusal". An internal review decision was made by TUSLA on 27 March 2018 and a total of 14 files, comprising 3,897 records, were identified as coming within the scope of the applicant's request. The request was partially granted but access was refused to certain records on the basis of sections 31(contempt of court), 35(confidentiality) and 37(personal information) of the FOI Act. On 24 April 2018, the applicant applied to this Office for a review of TUSLA's decision.
I have decided to conclude this review by way of a formal, binding decision. In conducting the review I have had regard to TUSLA's decision on the matter; TUSLA's communications with this Office; the applicant's communications with this Office; communications between the applicant and TUSLA on the matter and the content of the withheld records provided to this Office by TUSLA for the purposes of this review.
Scope of the Review
During the course of this review, the applicant confirmed that the scope of her request was confined to one report, namely a psychological report dated 21 December 2015. This review is therefore concerned solely with whether or not TUSLA was justified in refusing access to this report on the basis of section 31(1)(b) of the FOI Act.
Before considering the exemption claimed, I wish to make the following points.
It is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on TUSLA to satisfy me that its decision is justified.
Further, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the record at issue is very limited.
Analysis and Findings
Section 31 - Legal Professional Privilege and Contempt of Court
Section 31(1)(b) is a mandatory exemption that requires the head of an FOI body to refuse to grant a request if the record is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court. It is not subject to a public interest balancing test.
In this case, TUSLA has stated that the in camera rule applies and therefore it would be a contempt of court to release this record. It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The in camera rule applies to proceedings where there is a statutory requirement that such proceedings are held in private or otherwise than in public. It applies to certain proceedings including certain family law proceedings and certain proceedings involving minors. In many cases the requester seeking access to the records may have been a party to the in camera proceedings, but the identity of the requester is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).
TUSLA, in submissions to this Office, stated that there were court proceedings under the Child Care Act 1991 and family law legislation regarding the applicant and her son. It goes on to say that the report was sought and prepared in the context of TUSLA pursuing its statutory functions under the Child Care Act 1991. Care proceedings had been initiated and these proceedings operated under the in camera rules of the Court. According to TUSLA, the report the subject of this review was submitted to Court in advance of two hearings and the author of the report was present lest his evidence be required at the hearings. Further, social work reports submitted to Court also referenced this report. TUSLA noted that the report had also been copied to the applicant's solicitor on 24 February 2016.
TUSLA stated that as the report was prepared and presented for child care proceedings, it falls within the in camera rule and cannot be released without the permission of the Court.
The applicant stated that this report did not come about as a result of a court order but that she had agreed to partake in a parental capacity assessment. As the file is predominantly about her and her past she felt it should be made available to her.
The High Court has previously addressed the issue of the in camera rule as it applies to the FOI Act. In L.K. v The Information Commissioner  IEHC 373, the appellant had sought access to a report which had been prepared for District Court proceedings held in camera. The District Judge had also made an order in relation to the report. In the High Court, Ms. J O'Malley, in considering the in camera rule and the order of the District Judge, stated:
"The Information Commissioner has no authority to disregard either the statutory provisions relating to the in camera nature of the child care proceedings or the court order made in the case. It is no part of his powers to decide that the order was wrong, or that the appellant's right to a copy of the report under s.27 of the Child Care Act should prevail over such an order. Neither the status of the appellant as a party to the District Court proceedings nor the purpose for which she wishes to use the report are relevant to his powers in this respect."
Having considered the context within which the report the subject of this review was prepared and the fact that it was submitted to court for the purpose of in camera proceedings, I find that disclosure of the report would be a contempt of court. I find therefore that the record is exempt under section 31(1)(b) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA's decision to refuse access to a report dated 21 December 2015 on the basis of section 31(1)(b) of the FOI Act.
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.