Decision
Ms. Y and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-154852-S8B9D3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154852-S8B9D3
Published on
Whether Tusla was justified in part-granting access, under section 37(1) of the FOI Act, to records concerning a report made by the applicant and the subsequent investigation
9 February 2026
In a request dated 30 September 2024 the applicant requested all information in relation to an allegation of historic sexual abuse she made against a named individual. In a decision dated 25 October 2024, Tusla part-granted the request, with certain information redacted from the records under section 37(1) of the FOI Act. The applicant sought an internal review of that decision following which Tusla affirmed the original decision. On 20 December 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 and the applicant’s comments in her application for review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether Tusla was justified in refusing access, under section 37(1) of the FOI Act, to the information redacted from the records at issue.
Before I address the substantive issues arising, I would like to make a few preliminary comments.
Firstly, in correspondence with this Office the applicant expressed her dissatisfaction with what she said were errors in the records provided by Tusla. She was advised by the Investigating Officer that it was open to her to make an application under section 9 of the FOI Act for the amendment of any personal information in any records she believes to be incomplete, incorrect or misleading. It is my understanding that she has now made such an application.
Secondly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue, and their content, is limited.
Thirdly, it is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the legislation places no restrictions on the use to which released records may be put.
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). Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, the request shall be refused if that personal information is inextricably linked to personal information relating to parties other than the applicant. Section 37(1) is subject to sections 37(2) and 37(5).
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information. These include (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual and (xiv) the views or opinions of another person about the individual.
The information redacted under section 37 comprises interview notes, correspondence with third parties and witness statements relating to a case where the applicant made retrospective childhood sexual abuse claims to Tusla against a named individual. The names of the applicant’s family members, the named individual’s family members, witnesses, a counsellor, members of An Garda Siochana and the mobile phone numbers of Tusla staff were also redacted.
The applicant’s submissions to this Office mainly concerned errors she felt were contained within the records provided to her by Tusla. She provided examples of these alleged errors and said they may have had an impact on Tusla’s decision that her allegations were unfounded. She also complained about counselling records Tusla did not request from her during its investigation of her allegations. She said she wanted to know the identities of the witnesses used by the named individual because she had pressed charges and felt access to this information was a human right that she should have. She said the redactions should be removed so that she could have a fair chance in the criminal court. She said she has been devastated by the unfounded result to her allegation, not just for herself but for other victims who may have been abused by this individual and potential future victims.
In submissions to this Office, Tusla said personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or their close associates (family or friends), or (b) is held by a public body on the understanding that it would be treated as confidential. It said both exemptions apply in this case. It said the applicant has made allegations of child sexual abuse in confidence to Tusla and has made it clear that she has only told a small number of people about the abuse. It said the alleged abuse is therefore only known to the individual and close associates. It said interview notes with the alleged abuser are not being shared with the applicant as the understanding was that this would be confidential to the Tusla staff members involved in the investigation. It also said the child sexual abuse allegations made by the applicant fall within category (vi) of section 2 of the Act, information relating to an alleged offence by an individual. It said that the allegations were made by the applicant and did not involve a mandated person as referenced within the Children First Act 2015.
It is important to note that the fact that a requester may be aware of the nature of the information at issue or may have even provided some or all of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
Having reviewed the records, I am satisfied that all of the information withheld comprises either personal information relating to other third parties or joint personal information relating to the applicant and other third parties. I am also satisfied that section 37(1) applies to the mobile phone numbers of the various staff members contained in the records. In making this finding, I am cognisant of the fact that many staff commonly use their own personal phone numbers in the course of their official functions.
An Garda Síochána is a partially included agency. Schedule 1 provides that “section 6 does not include a reference to … An Garda Síochána (AGS), other than insofar as it relates to administrative records relating to human resources, or finance or procurement matters”. It follows that the name of a member of AGS, where it is contained in a record that is not a relevant administrative record, cannot be regarded as the name of a member of the staff of a public body, for FOI purposes. In this case, the names of staff members of AGS are contained in reports prepared by AGS and Tusla in the context of the members operational duties. I am satisfied that these names should be treated as personal information and I find that Tusla was justified in withholding these names under section 37(1) of the Act.
I find, therefore, that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2) and (5). Accordingly, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the information at issue.
Section 37(2) provides that section 37(1) does not apply if;
a) the information concerned relates to the requester concerned,
b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
c) information of the same kind as that available 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 it 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.
The purpose of section 37(2)(a) is to ensure that section 37(1) cannot apply to information relating solely to the requester. I am satisfied that the withheld information in the records that relates to the applicant is inextricably linked with personal information relating to third party individuals. I am satisfied, therefore, that section 37(2)(a) does not apply, pursuant to section 37(7).
No argument has been made that any of the circumstances outlined above at subsections (b) to (e) are relevant in this case, nor do I consider any to apply.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still 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 request would benefit the person to whom the information relates. No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it 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, 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. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8), 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 its submissions, Tusla said it considered the following factors in favour of release:
• There is a public interest in openness, transparency and accountability in the manner in which Tusla performs its functions.
• There is a public interest in members of the public knowing that the information held by public bodies about them, or those they represent is accurate.
• There is a public interest in members of the public exercising their rights under the FOI Act.
It considered the following factors against release:
• The strong public interest in protecting the right to privacy.
• The public interest in protecting privacy rights is reflected 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).
• The right to privacy also has a constitutional dimension in Ireland.
It said the records subject to this review are of a very sensitive and personal nature relating to a number of individuals and were created as a consequence of notification and investigation of retrospective child sexual abuse allegations. It said the outcome of the Tusla investigation was that the allegations were unfounded and therefore the right to privacy of the alleged abuser outweighs the public interest in releasing the redacted information. It said that to release such information would negatively impact the right to privacy of this individual.
While the applicant has made no specific public interest arguments in respect of the records redacted under section 37, she said that she had concerns for other victims and potential future victims. As already advised, the issues the applicant raised in submissions in connection with the accuracy of the information contained in the records can be addressed through an application under section 9 of the Act.
I accept that there is a public interest in individuals ensuring that information held about them is accurate and in enhancing the transparency and accountability of Tusla in respect of individuals who make allegations of this nature. It seems to me that those interests have been served to a significant degree by the release of as much of the information Tusla holds in respect of the applicant’s case as is permitted under the Act, and it is not apparent to me that the release of the withheld information at issue would further enhance that transparency and accountability to any significant degree. The question I must consider is whether those public interest factors in favour of release of the withheld information outweighs, on balance, the privacy rights of the relevant third parties. In my view, they do not.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes it 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a). While I accept that much of the information is already known to the applicant, I must have regard to the fact that the release of the records must be regarded, in effect, as release to the world at large.
Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information at issue outweighs, on balance, the privacy rights of the relevant third parties. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision. I find that Tusla was justified in redacting certain information from 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