Decision
Ms & Mr X and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-150919-D8W7C7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150919-D8W7C7
Published on
Whether Tusla was justified in refusing access to records relating to the applicants and their daughter on the basis of section 42(m)(i) and on the basis that further records do not exist or cannot be found
19 May 2025
This case has its background in a previous review by this Office (OIC-140564) and in what the applicants describe as a “malicious report” which was made to Tusla in relation to their child.
On 17 August 2022, the applicants made a request for access to all records held by Tusla relating to them and to their child from 27 July 2022. Tusla part-granted the applicants’ request, refusing access to certain information on the basis of sections 37(1) and 42(m)(i) of the FOI Act. Tusla also referenced a video recording that was shared with the local Social Work service by a person who made a report. However, it said that the recording was “not accessible for FOI purposes”. The applicants sought a review by this Office and the review was concerned solely with whether Tusla was justified, under section 15(1)(a), in refusing access to any further records relating to the applicants and their child, apart from those already released.
In a decision which issued on 21 December 2023, this Office annulled Tusla’s effective reliance on section 15(1)(a) and directed it to undertake a fresh decision-making process in respect of the applicants’ request. In arriving at that decision, the Investigator noted that during the course of the review, Tusla confirmed that it had located a video recording relating to the applicants’ request and had indicated that it would be willing to release the transcript of the recording, subject to any applicable exemptions. The Investigator noted that as the body had confirmed that further records falling within the scope of the request exist, he was unable to find that Tusla was justified in refusing the applicants’ request on the basis of section 15(1)(a). He annulled the FOI body’s decision on that basis.
On 17 January 2024, the applicants wrote to Tusla noting the above decision. On 26 January 2024, Tusla issued a fresh decision. It part-granted access to 21 pages of records and withheld certain information on the basis of sections 37(1), 37(7) and 42(m)(i) of the FOI Act. A video recording transcript was scheduled and part-granted but no video recordings were referenced. On 18 February 2024, the applicants sought an internal review of Tusla’s decision. On 27 February 2024, Tusla affirmed its original decision. On 1 August 2024, the applicants 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 applicants. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In their application to this Office, the applicants said that they asked Tusla for a copy of the video recordings of their daughter that were sent to the body and used to make a “malicious report”. They said that they also requested a copy of the transcript of the phone call during which the report was made. They said they did not receive those records. They made no reference to the records which were part-granted.
I contacted the applicants to clarify the scope of this review. I noted the reference to certain video recordings and a phone call transcript in their application. I outlined my understanding that the applicants are concerned with Tusla’s refusal to provide these records and that they are not seeking a review of the information withheld from the records released. I said that I therefore understood the scope of this review to be confined to whether Tusla was justified in refusing access to further records relating to the applicants and their child, apart from those already released.
The applicants responded and said that they did not reference the part-granted records in their application to this Office as they previously received unredacted records from Tusla. They did not dispute my stated understanding of the scope of this review and I will proceed on that basis.
During the course of the review, and in submissions to this Office detailing the steps taken to search for relevant records, Tusla located a video recording and provided a copy of the record to this Office. In light of the contents of the record, I am satisfied that section 42(m)(i) is of relevance and I will consider the matter below.
Accordingly, this review is concerned solely with whether Tusla was justified in refusing access to a particular video recording on the basis of section 42(m)(i) and in refusing, under section 15(1)(a), access to further records relating to the applicants and their child, apart from those already released by the FOI body.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. 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 video recording provided to this Office during the course of the review, notwithstanding the fact that the provision was not originally relied upon as a ground for refusing access to the record in question.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record is limited.
I note that in their correspondence with this Office, the applicants referred to the manner in which Tusla processed relevant records and engaged with them. It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. The scope of this review is limited to determining whether Tusla was justified in its FOI decision-making.
On a related point, I note that the applicants referenced attempts by An Garda Síochána (AGS) to access certain records. This review is concerned with the right of access to records provided for under the FOI Act. I cannot comment on any other legal avenues which may exist and which may enable individuals or public bodies to secure access to relevant records.
Finally, as noted above, the first time this matter came before this Office the case was annulled and remitted to Tusla for fresh consideration. In the decision of this Office which issued, the Investigator specifically referenced a video recording which was located, as well as a transcript of the recording. While the transcript of the video recording was referenced in the schedule provided as part of Tusla’s fresh decision-making process, no reference was made to any video recordings. While submissions were subsequently received from Tusla in respect of this matter and the applicants were notified of the details, I would remind the FOI body that in progressing annulled and remitted cases, the decision of this Office should be carefully considered and any findings reflected in fresh decision-making.
Section 15(1)(a)
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case such as this is to review the decision of the FOI body and decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision. I must also assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The evidence in “search” cases generally consists of the steps actually taken to search for records along with any miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
As noted above, in their application to this Office, the applicants said that they had not been provided with a copy of video recordings of their daughter or a copy of the transcript of a phone call during which a report was made to Tusla. They said that they were initially led to believe that there were no video recordings in the possession of Tusla. They referred to subsequent communications with Tusla in which video recordings were referenced. They said that there has been “a deliberate attempt to hide information” from them. Their position is that Tusla has not engaged with them in an honest and transparent way. In the circumstances, this Office asked Tusla to provide submissions detailing the steps taken to search for relevant records.
In respect of its search for particular video recordings, Tusla said that during the course of the first review before this Office, relevant records were downloaded from an information system. It said that while there were references to video recordings within the records, no video recordings were held on file. At internal review stage, it said that the Social Work department was consulted and it confirmed that videos existed but had not been uploaded to the relevant information system. It said that due to the method of receipt of the footage, the social worker was unable to transfer the records.
Tusla confirmed that a social worker received three video recordings from an anonymous source which allegedly relate to the applicants’ child. It said that the videos were “inconclusive regarding content” and “there was no identifiable content therein”. It said that as part of its revised decision-making process on foot of this Office’s decision in case OIC-140564, transcripts relating to the video footage were released to the applicants.
Tusla said that during the fresh decision-making process, it conducted extensive searches on a laptop which a social worker had used to transfer the videos. However, it said that there was no evidence of the video footage on the laptop. It said that the social worker also emailed the footage, comprising three videos, to a colleague. It said that due to the size of the videos, only the shorter of the three videos could be successfully emailed and accessed. At the time of its original submissions to this Office during the course of this review, Tusla said that the phone upon which the original videos were held was missing. In subsequent communications, it said that the phone had been located but was not operational. It said that it was investigating whether the relevant records could be retrieved.
Tusla said that following further extensive follow-up with the Social Work department, it located one video recording which was provided as part of the initial referral relating to the applicants’ child. I will address this matter further in the context of section 42.
Tusla said that no audio recordings or transcripts of telephone calls coming within the scope of the request exist. It said that it would not have audio recordings of telephone calls and that it is not Tusla practice or policy to transcribe details of telephone calls. It said that the detail of telephone calls is recorded to relevant case notes.
Tusla also provided submissions in respect of its record management processes. It provided this Office with its retention schedule, records management policy, retention and disposal schedule and best practice guidance. It said that it confirmed that no records within the scope of the request were destroyed in line with the above policies. In respect of the searches conducted, Tusla said that a search and retrieval process commenced on foot of the applicants’ original request. It said that records were downloaded from an information system. It said that a local area search confirmation form was completed and that no video/audio recordings or transcripts were identified at that time.
Tusla said that several meetings were held in relation to locating the videos. It said that such meetings were attended by Tusla staff with the support of the Privacy Network Team. It said that the lead social worker, who has subsequently departed the service, was contacted on a number of occasions to ascertain the chain of events and obtain clarity on the records held. It said that one video was ultimately identified. It said that investigative searches were carried out by Tusla ICT. In their application to this Office, the applicants referenced video records being emailed to various Tusla staff members and social workers. In response, Tusla said that all relevant individuals have been contacted on numerous occasions in relation to the records.
The applicants were notified of the search details provided by Tusla and provided with an opportunity to make any further submissions. In response, the applicants outlined their belief that Tusla deliberately tried to mislead them, this Office and AGS. The applicants said that AGS also tried to access the video recordings. The applicants said that it has taken years “to finally get Tusla to admit that they have video recordings of our daughter in their possession”. They said that they feel “extremely upset and let down that a public body that is meant to be protecting families and children has gone to such levels to deceive” them.
The applicants said that from the outset, Tusla recognised that the report at issue was malicious. They referenced an individual that they believe made the report. I will not repeat their submissions in this regard but I confirm that I have considered them. The applicants also expressed their dissatisfaction with the manner in which their FOI request was processed by Tusla. They referenced attempts by AGS to access video records. They raised a number of queries in respect of the “electronic trail” of the video recordings. They queried why the video recordings were not available via the email account of the social worker who sent them to a colleague, even if all of the recordings were not ultimately received. They queried whether the recordings were available on a laptop used to send the email. They also queried how the FOI body was able to make a transcript of the video recordings if they were unable to locate and access them. In addition, the applicants raised concerns about the manner in which the records were processed and posed a number of questions in this regard. I should note that I have no remit to investigate the manner in which Tusla may have processed particular records, other than in respect of its FOI decision-making.
In a subsequent update provided by Tusla to this Office, it said that it had attempted to access the relevant phone using its phone password criteria. It said that the relevant pin did not work. It said that a staff member attempted to access the phone using their own SIM card but was unsuccessful. It said that it contacted the phone provider support team who advised that they would not be able to access the handset without the pin. It said that the only way to access the handset would be to “do a factory reset” but that this would “wipe all information that is currently on the handset”. It said that, unfortunately, it is unable to access the handset to ascertain what information, if any, is on the device.
On foot of the applicants’ submissions, the Investigator raised a number of additional queries with Tusla in respect of the searches undertaken. In response, Tusla said that a thorough search of the laptop used at the time was conducted by the ICT department. It said that department confirmed that all folders within Outlook were searched and that video recordings were not located. In respect of the transcript that was created, Tusla said that once the relevant social worker realised that she was unable to forward the videos via email to a colleague, she set about transcribing the audio to text. It said that the transcript was uploaded to a relevant internal system on 3 February 2023 after the initial internal review was undertaken. It said that the transcript was released to the applicants in January 2024 after a fresh search for records was conducted. Finally, in respect of the phone which Tusla said it has been unable to access, the FOI body said that it engaged with the social worker who was the original phone holder and she cannot remember the relevant pin number. Tusla said that it also checked with that social worker’s line manager who was also unable to provide this information.
I have carefully considered the submissions made by the parties in respect of the search aspect of this review. As noted, the role of this Office is to decide whether the FOI body was justified in its decision to refuse the request on the ground that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. The test in section 15(1)(a) is whether searches have been reasonable. We take the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. It is possible, and it is clearly envisaged by the Act, that records may exist but still may not be found after all reasonable steps have been taken to locate them. Furthermore, the FOI Act does not require a body to continue searching indefinitely for records that cannot be found.
In the current case, having considered the explanation provided by Tusla in respect of audio recordings or transcripts of telephone calls and the information provided in respect of record management processes and general searches, I am satisfied that the FOI body has justified its decision to refuse access to further records on the ground that they do not exist or cannot be found.
In respect of the outstanding video recordings, which Tusla has acknowledged the existence of, the question at issue is whether the FOI body has taken reasonable steps to locate the records. I am satisfied that it has. In reaching this conclusion, I have taken into account the fact that Tusla said that it has engaged with its ICT department and external service providers and has endeavoured to access the records at issue. It said that it also consulted relevant staff members in an attempt to gain access to the phone on which the relevant recordings may be located. Its efforts have proven unsuccessful. However, I consider that it has taken all reasonable steps to locate the records. While I understand that this finding may frustrate the applicants, given that they know that the records in question exist, or at least once existed, I do not consider it appropriate to direct an FOI body to carry out extensive or indefinite searches. I do not believe that there are any further reasonable steps that Tusla could undertake at this time to secure the video recordings in question.
In the specific circumstances of the case and having carefully considered the submissions made by the parties, I find that the FOI body was justified in its effective decision to refuse the applicants’ request for further records on the basis of section 15(1)(a).
For the avoidance of doubt, a decision that section 15(1)(a) was justified does not rule out the possibility that further records may come to light at a later stage. Neither does the subsequent discovery of an additional record undermine an earlier decision on section 15(1)(a). In the event that further records falling within the scope of the request are located by the FOI body at some point in the future, I would expect Tusla to make those records available or to deal with the matter on the basis of a new FOI request from the applicants as this would guarantee their right of appeal to this Office.
Section 42(m)(i)
Section 42 of the FOI Act restricts the applicability of the FOI Act in certain circumstances. Section 42(m)(i) 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.
Essentially, this section provides for the protection of the identity of persons who have given information to FOI bodies 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. Section 42(m)(i) is not subject to a public interest test. If this section is found to apply to the record, that is the end of the matter and there is no right of access to the record under the FOI Act.
While the FOI body originally relied on section 42(m)(i) in its decision letters, it did not raise the provision as a ground to refuse access to the video recording which was located and provided to this Office during the course of the review. Indeed, it initially indicated that it would be prepared to provide the video footage. It subsequently amended its position and said that it now believes that section 42(m)(i) applies to record.
The applicants were notified of the potential relevance of the subsection and provided with an opportunity to make submissions. Their response focused predominantly on the searches carried out by Tusla and their belief that the FOI body misled them in respect of the existence of video recordings. They referenced an individual that they believe made the relevant report to Tusla. They said that AGS cannot investigate relevant matters without access to the video recordings. They said that their family and daughter have been let down by a system that should be protecting them. They said that the person they believe made the reports should not be protected and that their child should have the “right and freedom to live in her home without fear of being recorded or videoed”. They said that their family and their daughter’s rights have been violated and that they strongly feel and believe that the video recordings of their daughter should be released to them.
For section 42(m)(i) to apply there are three requirements that much be met:
1. Disclosure of the withheld information could reasonably be expected to reveal or lead to the revelation of the identity of the supplier of the information,
2. The information supplied must have been given in confidence, and
3. The information supplied must relate to the enforcement or administration of the law.
I am limited in the extent to which I can describe the video recording in question. While noting that a transcript of the video has been provided to the applicants by Tusla, I consider that additional information can be gleaned from the video itself. It seems to me that in light of its contents, the release of the record could reasonably be expected to reveal or lead to the revelation of the identity of the individual who made the recording. The fact that the applicants may believe that they know the identity of the individual who made the report is immaterial. The question at issue is whether disclosure of the record in question would reveal the identity of the individual. In that context, I accept that the first requirement of section 42(m)(i) is met.
The second requirement for the applicability of the subsection is that the information must have been given in confidence. In part-granting records released to the applicants, Tusla relied on section 42(m)(i) and said that information was provided in confidence in relation to the enforcement of the Children First Act 2015. Having considered the contents of those records, I am satisfied that the relevant report, including the relevant video recording, was provided in confidence.
I note the applicants’ position that the report in question was malicious. In their submissions, they said that “from the outset, Tusla recognised that this was a malicious report”. 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. Taking the above into consideration, and again noting the contents of the records part-granted to the applicants, I am satisfied that the second requirement of section 42(m)(i) is met.
The third requirement is that the information provided relates to the enforcement or administration of the law. The video recording at issue relates to a report made to Tusla in respect of the applicants’ daughter. Notwithstanding their position that the report that was made was malicious, the record at issue concerns a child welfare report. Tusla’s position is that the report was made in confidence in relation to the enforcement of the Children First Act. 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. I am satisfied that the third requirement of section 42(m)(i) is also met.
In conclusion, therefore, having found that each of the three requirements are met, I find that Tusla was justified in refusing access to the relevant video record under section 42(m)(i) of the FOI Act. I would again note that the section is not subject to a public interest test. As I have found section 42(m)(i) to apply, no right of access exists under the FOI Act to the particular record sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision. I find that it was justified in refusing access to a particular record on the basis of section 42(m)(i). I find that it was justified in refusing access to further records on the basis of section 15(1)(a) and on the grounds that such records do not exist or cannot be found.
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.
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Alison Connolly
Investigator