Decision
Mr X and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-147203-M5K9R7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147203-M5K9R7
Published on
Whether Tusla was justified in refusing access, under sections 31(1)(b) and/or 37(1) of the FOI Act, to certain information contained in referral records and child welfare reports relating to the applicant’s child
8 July 2025
In a request dated 9 February 2024, the applicant sought access to internal correspondence regarding his child based on a referral letter from a named Social Worker. Tusla granted access to 22 pages of records with redactions made under sections 31(1)(b) and 37 of the FOI Act. On 21 February 2024, the applicant sought an internal review of Tusla’s decision. On 7 March 2024, Tusla varied its original decision. It released additional information from a number of the pages that had been redacted under section 37. On 8 March 2024, the applicant applied to this Office for a review of Tusla’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by Tusla, communications with the applicant, and to the above correspondence between the parties. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of binding decision.
This review is concerned solely with whether Tusla was justified in redacting, under sections 31(1)(b) and 37 of the FOI Act, certain information from records relating to the applicant’s child
While I am required by section 22(10) of the FOI Act to give reasons for my decision, section 25(3) provides that the Commissioner must take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record. Accordingly, the details I can provide of the contents of the records at issue and of Tusla’s submissions in this case are somewhat limited, as are the reasons I can give for my decision.
It is also important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of section 37(1) to all of the information at issue, notwithstanding the fact that Tusla relied on section 31(1)(b) as a ground for redacting a small amount of information from the records.
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).
The term “personal information” is defined in the Act as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his or 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. The information at issue in this case is contained within records relating to a referral to Tusla in connection with concerns for the welfare of the applicant’s daughter. Having examined the redacted information, I am satisfied that it can be described as;
• third-party personal information,
• joint personal information relating to the applicant, his daughter and other third-parties,
• joint personal information relating to the applicant and other third-parties, or
• joint personal information relating to the applicant’s daughter and other third-parties.
In all instances, the release of the information would, in my view, involve the release of personal information relating to identifiable third-parties. In his application to this Office for a review of Tusla’s decision, the applicant said he already knows the identity of individuals whose names have been redacted. I make no comment on that assertion other than to say that the fact that a requester may be aware of the nature of information redacted under section 37(1) does not mean that it cannot qualify for protection under section 37(1). It is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. I find, therefore, that section 37(1) applies to all of the information at issue, including the information that was withheld by Tusla under section 31(1)(b). However, this is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will examine below.
Section 37(2) provides that section 37(1) does not apply if-
(a) subject to subsection (3), the information concerned relates to the requester concerned,
(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual
No argument has been made that any of the subsections of section 37(2) apply and I am satisfied that they do not.
Section 37(5) provides that access to the personal information of a third-party may be granted where, on balance, (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 information would be to the benefit of the person to whom the information relates. No evidence has been presented to this Office to suggest that the release of the information withheld would be to the benefit of the third-parties concerned, nor do I consider this to be the case in the context of the records at issue. I therefore find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, as I have indicated above, the release of records under the FOI Act must be regarded, in effect, as release to the world at large. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8) (which I consider below), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third-party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In his application for review, the applicant said false accusations were made against him and were dismissed by Tusla and he argued that he was entitled to access the records in full as he has done nothing wrong. The FOI Act recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. I accept that there is a public interest in individuals against whom complaints are made to be afforded fair procedures and natural justice in the consideration by an FOI body of such complaints.
On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act, which makes clear that the release of records under FOI must be consistent with the right to privacy. It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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 should also be bourne in mind that disclosure of a record under FOI is, in effect, disclosure to the world at large.
Having considered the information already provided to the applicant, it seems to me that the public interest in enhancing the transparency and accountability of Tusla in relation to its handling of the relevant referral has been met to a large extent by having been informed of the nature of and reason for the referral and offered an opportunity to present his case. In processing his FOI request, it seems to me that Tusla has endeavoured to release the records to the greatest extent possible whilst seeking to protect the privacy rights of third-parties. The question I must consider is whether the public interest in ensuring the further transparency and accountability of Tusla by releasing the remaining information withheld in the records at issue outweighs, on balance, the public interest in protecting the privacy rights of the third-parties concerned. Having regard to the sensitive nature of the context in which the information is held, to the significant protection afforded to privacy rights, and to that fact that the release of records under section 37(5)(a) must be regarded effectively as release to the world at large, I am satisfied that it does not. I find, therefore, that section 37(5)(a) does not apply.
Section 37(1) is also subject to section 37(8) of the FOI Act. Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure, NDP Delivery, and Reform (the Minister) may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations). Among other things, the 2016 Regulations provide for a right of access to personal information relating to an individual who has not attained full age by his/her parent or guardian where access to those records would, having regard to all the circumstances, be in the individual’s best interests. The Regulations do not apply, however, where the disclosure of the records relating to the child would also involve the disclosure of information relating to other parties. Having regard to the constraints imposed by section 25(3), I believe I can say only that the 2016 Regulations do not, in my view serve to disapply section 37(1) in this case.
Accordingly, I find that Tusla was justified in its decision to refuse access to the information withheld in the records at issue under section 37 of the FOI Act. Having found section 37(1) to apply, I do not need to consider the applicability of section 31(1)(b) to any of the information at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Tusla to refuse access to the records at issue under section 37(1) of the FOI Act.
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.
Stephen Rafferty
Senior Investigator