Case number: OIC-107760-H4K7B1
All references to communications with the applicant in this decision can be taken to include communications with her solicitor, as appropriate. On 2 January 2020, the applicant, through her solicitors, submitted a request to four separate Offices of TUSLA for all records concerning her daughter and/or herself. The requests were sent to the Corporate FOI Office and to three Local Area Offices.
In a letter dated 8 January 2020, TUSLA drew attention to the requirement, under section 12(1)(b) of the FOI Act, that a request for records must contain sufficient particulars in relation to the information concerned to enable the records to be identified by the taking of reasonable steps, and it sought additional details concerning the records sought, including the time period to which the records relate, the category of service(s) accessed, and the location in which services were accessed.
This was followed by a protracted exchange of correspondence between the parties, essentially in relation to the appropriateness of TUSLA’s expectation that the applicant should be required to provide additional information to allow it to identify all relevant areas in which relevant records might be held. In the course of that correspondence, TUSLA informed the applicant that it had located relevant records in the three Local Area Offices and that it required further details to allow for a search to be conducted of its Corporate Offices.
Ultimately, the applicant provided no further clarifications of the type sought by TUSLA and on 23 November 2020, TUSLA issued a decision wherein it refused the applicant’s request under section 15(1)(b) of the FOI Act, which provides for the refusal of a request that does not comply with section 12(1)(b). The applicant sought an internal review of that decision on 19 January 2021, following which TUSLA affirmed its refusal of the request under section 15(1)(b).
On 10 May 2021, the applicant sought a review by this Office of TUSLA’s decision. I have now completed my review in this case and I have decided to bring the case to a close by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between TUSLA and the applicant during the consideration of the request and to correspondence between this Office and both TUSLA and the applicant on the matter.
This review is concerned solely with whether TUSLA was justified, under section 15(1)(b) of the FOI Act, in refusing the applicant’s request for all records concerning her or her daughter.
Section 15(1)(b) of the FOI Act provides that an FOI body may refuse to grant a request where the request does not comply with section 12(1)(b). That section, in turn, provides that a request for access to records must contain sufficient particulars in relation to the information concerned to enable the records sought to be identified by the taking of reasonable steps. It is relevant to note that under section 15(4), an FOI body is not entitled to refuse a request under section 15(1)(b) unless it has assisted, or offered to assist, the requester in amending the request so that it would no longer fall to be refused under that section.
The general thrust of the applicant’s position is that TUSLA is obliged to make reasonable efforts to identify and locate relevant records and that the onus cannot fall on an applicant to identify and pinpoint the location of relevant records. She is, in essence, of the view that if TUSLA cross-referenced its records it would be able to identify the locations where relevant records may be held. It is also her contention that if records are properly kept, an individual’s name, address(es), and date of birth ought to be sufficient to enable information relating to that person to be identified.
It is noteworthy that the request made in this case was for all records relating to the applicant and/or her daughter (my emphasis). It is clear to me, having examined the various exchanges between the parties, that the applicant is seeking access to every record held by TUSLA concerning her and/or her daughter, regardless of which, or how many, locations within TUSLA such records may be held. As such, she might consider that her request contains sufficient particulars to enable the records sought to be identified. If that is the case, then I believe she is mistaken. It seems to me that the purpose of section 12(1)(b) is not merely to ensure that the FOI body understands what records are sought but also that the body can identify those records by the taking of reasonable steps.
In case OIC-97652(available on our website www.oic.ie), I considered whether a request for all records held by a county council relating to the applicant and his property contained sufficient particulars to enable the records sought to be identified by the taking of reasonable steps. I considered that in the absence of any meaningful description of the nature of the records sought, the council could not, with any degree of certainty, be satisfied that it had identified all relevant records unless it had conducted a search of each and every section and department.
I found that it was not reasonable to expect the council to carry out such a wide ranging search in an effort to identify all relevant records. I noted that the FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that might require a significant allocation of time and resources. I found that this aim to strike such a balance is reflected in the requirement that requests contain sufficient particulars in relation to the records sought to allow for their identification by the taking of reasonable steps.
It seems to me that similar considerations arise in this case. TUSLA explained that it does not have a database that allows it to carry out a search of all its services and locations. It referred to the numerous different offices within its Corporate Offices and argued that it was not reasonable to ask staff members in each of those offices to undertake a search for records in relation to a request where sufficient particulars had not been provided and the scope had not been confirmed. It also explained that it provides a wide range of services for children and families, including child protection and welfare, alternative care, family support, early years services, education support services, and services to protect survivors of domestic, sexual, and gender based violence. As such, it noted that it asks requesters to provide relevant details in relation to the services with which they have engaged in order to assist it to undertake a search for records.
Given the broad nature of the request, it seems to me that if TUSLA was to ensure that it had identified all relevant records, it would have to conduct a search for records across every part of the organisation, in the absence of any specific knowledge as to what parts of the organisation it might expect to hold relevant records. I am satisfied that this would go beyond the taking of reasonable steps.
I should add that having considered the exchanges between the parties during the processing of the request, I am also satisfied that TUSLA made a number of offers to assist the applicant in amending the request so that it would no longer fall to be refused under section 15(1)(b), in compliance with section 15(4). It provided details of the type of information that would allow it to properly consider the applicant’s request. While I appreciate that the applicant could not be expected to have sufficient knowledge of TUSLA’s structures to identify all of the various locations that might hold relevant records, she could have provided details of the various interactions she had with TUSLA and the services availed of, which would have allowed TUSLA to more readily identify the records sought.
Nevertheless, it also seems to me that TUSLA’s decision to refuse the request in its entirety was disproportionate, in light of the fact that it had already conducted searches and had located relevant records in the three Local Area Offices to which the applicant had specifically addressed copies of the request.
I note TUSLA’s argument that as the applicant had not clarified the scope of her request or indicated whether she wished to proceed solely on the basis of the records identified, those records had not been considered for release. However, it seems to me that TUSLA could usefully have processed the request having regard to the records located on the ground that the applicant had provided sufficient particulars to allow it to identify those particular records.
I find that the appropriate course of action to take is to annul TUSLA’s decision to refuse access to records coming within the scope of the applicant’s request held by the three Local Area Offices, the effect of which is that it must consider the applicant’s request for such records afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with TUSLA’s decision.
On the matter of TUSLA‘s refusal of the request for any other relevant records, I find that it was justified in refusing access to such records under section 15(1)(b) on the ground that the request did not comply with the provisions of section 12(1)(b) in so far as it did not contain sufficient particulars to enable the records sought to be identified by the taking of reasonable steps.
For the benefit of the applicant, I would add that it is open to her to submit a fresh request for records apart from those held by the three Local Area Offices. As TUSLA suggested, it is open to her to provide more precise details to allow TUSLA to identify the records sought, such as the category of service(s) accessed and the location in which services were accessed.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary TUSLA’s decision in this case. I annul its decision to refuse access, under section 15(1)(b), to records held by three Local Area Offices coming within the scope of the applicant’s request and direct it to conduct a fresh decision-making process in respect of such records. I affirm its decision to refuse access to any additional relevant records under section 15(1)(b) on the ground that the request did not contain sufficient particulars to enable the records sought to be identified by the taking of reasonable steps.
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.