Decision
Ms. D & Tulsa
From Office of the Information Commissioner (OIC)
Case number: OIC-152804-R6P6L6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152804-R6P6L6
Published on
Whether Tusla was justified in part-granting access, under sections 37(1), 37(7) and/or 42(m)(i) of the FOI Act, to certain information in records concerning a report made about the applicant
3 July 2025
In a request dated 19 September 2024, the applicant sought access to a report made about her to Tusla. In a decision dated 3 October 2024, Tusla part-granted the request with certain information redacted under section 37(1) of the FOI Act. The applicant requested an internal review of that decision, following which Tusla affirmed the original decision. On 11 October 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 had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
The records at issue comprise 19 pages which were compiled following receipt by Tusla of a report concerning the applicant. One page is a pre-intake review and the remainder a referral and screening form. The report received in respect of the applicant consists of three pages and is contained in the records.
In light of the contents of this record, I am satisfied that section 42(m)(i) of the FOI Act is also of relevance. That section provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal the identity of a person who provided information to an FOI body in confidence in relation to the enforcement or administration of the law. It is important to note that a review by this Office is considered to be “de novo”, which means that in this case, is it based on the circumstances and 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. Section 42 provides that the Act does not apply to certain records. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of section 42(m)(i) to the records at issue, notwithstanding the fact that the provision was not originally relied upon as a ground for refusing access to the records.
During the course the review, both parties were notified of the potential relevance of section 42(m)(i) of the Act to the record and submissions were invited. No further submissions have been received to date.
This review is therefore concerned with whether Tusla was justified in refusing access, under section 42(m)(i) and/or section 37(1) of the FOI Act, to the information redacted from the records at issue.
As the applicant’s request was for access to the report made and as I consider section 42(m)(i) to be of most relevance to the report, I will consider the applicability of that section first.
Section 42(m)(i)
Section 42(m) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession.
In essence, section 42(m)(i) provides for the protection of the identity of persons who have given information in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies. The section is not subject to a public interest test. In other words, if the section applies, then that is the end of the matter and no right of access exists under the FOI Act to the information sought.
For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. The second is that the information supplied must have been given in confidence, while the third is that the information supplied must relate to the enforcement or administration of the law.
First Requirement – reasonable expectation to reveal the identity
Under section 25(3) of the FOI Act, I must take all reasonable precautions to prevent the disclosure of exempt information in the course of a review so I am limited in the extent to which I can describe the record in question. I can say, however, that the report received was redacted in its entirety. I can also say that having regard to its contents, the release of the record could, in my view, reasonably be expected to reveal or lead to the revelation of the identity of the individual(s) who made the report. I find, therefore, that the first condition is met with regard to the report.
Second requirement – confidentiality
In its submissions, the Council said the information withheld was given in confidence and on the understanding that it would be treated as confidential. I also note that the individual(s) who made the compliant indicated that they wished to remain anonymous. The applicant said there was a report made against her regarding the welfare of her children and it was untrue. She said that she knows who the person was who sent in the report and has been dealing with malicious and vile threats for ten years from this person.
I note the applicant’s position that the report in question was malicious. Even if I was satisfied that the information was provided for malicious purposes, this Office gives significant weight to safeguarding the flow of information to FOI bodies. The purpose of section 42(m)(i) is to protect that flow of information from the public which FOI bodies require to carry out their functions relating to the enforcement or administration of the law. We accept that the disclosure of the identity of informants, even where the evidence suggests that the provision of the information was maliciously motivated, could prejudice the flow of information from the public. In many situations the FOI body acts on the information provided in good faith. When the situation of the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken is considered, the difficulty for the FOI body in handling such information in any other manner becomes apparent. Taking the above into consideration, I am satisfied that the second requirement of section 42(m)(i) is met.
Third requirement – enforcement or administration of the law
Tusla said that under the Child and Family Agency Act 2013, one of its functions is to promote the development, welfare and protection of children. Having regard to the nature of the record, I am satisfied that the information provided relates to the enforcement or administration of the law insofar as it pertains to Tusla’s responsibility in respect of child welfare and protection services and that the third condition is met with respect to this information.
Having found that each of the three requirements are met, I find that Tusla was justified in refusing access to all of the information in the three page report under section 42(m)(i) of the FOI Act.
Section 37
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, including personal information relating to a deceased individual. 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.
The information redacted under section 37 comprises two illegible lines on the first page, the name of a Garda, information concerning third parties known to the applicant and joint personal information concerning the applicant and third parties.
Tusla said the top and bottom sentences of the first page were deemed illegible, despite the FOI officer liaising with the decision maker to try to decipher what was handwritten. It said, as a practice, the FOI Officer redacting the file would not release illegible information as there is a risk that it might be legible for the requester and may contain personal information regarding a third party.
Tusla said that much of the redacted information is of a very sensitive nature involving a third party and its release would in effect be release to the world at large which could have a detrimental effect on this individual. It said any information regarding solely the applicant or her children and which doesn’t contain joint personal information has been released.
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 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)
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.
No argument has been made that any of the circumstances outlined above at subsections (a) to (e) are relevant in this case, nor do I consider any to apply. I find that section 37(2) does not apply.
Section 37(5)
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.
Tusla’s arguments in relation to where the balance of the public interest lies are focussed essentially on the information to which I have found section 42(m)(i) to apply. The vast majority of the information remaining at issue is joint personal information relating to the applicant and another party. 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 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 there is any public interest in releasing the information at issue that outweighs 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 refusal to redact certain information from the records at issue under sections 37(1) and 42(m)(i) 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