Cinneadh
Ms. X and Tusla – Child and Family Agency (“Tusla”)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152721-C8R0P7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152721-C8R0P7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Tusla was justified under sections 29(1) and 30(1) of the FOI Act in refusing access to records relating to the applicant’s organisation
24 July 2025
By way of context, the applicant is a representative of a company (“the company”) which provides childcare and Montessori services at a number of branches across the Dublin area. In a request dated 31 July 2024, the applicant sought access to all records that Tusla held in relation to her company from 10 March 2023. No decision on the request was issued by Tusla within the statutory timeline, and on 18 September 2024 the applicant sought an internal review of Tusla’s deemed refusal of her request. In its internal review decision dated 9 October 2024, Tusla part-granted the applicant’s request, releasing certain records it identified as falling within the scope of the request with redactions made pursuant to sections 15(1)(i) and 29(1) of the FOI Act, and withholding certain other records in full under section 29(1). On 16 October 2024, the applicant applied to this Office for a review of Tusla’s decision.
In the course of this review, I reverted to Tusla to query the basis on which it had relied on section 15(1)(i) of the FOI Act. In response, Tusla indicated that it had cited this provision of the FOI Act in error, and clarified that it no longer sought to rely on same. However, in relation to the material in respect of which it had initially sought to rely on section 15(1)(i), Tusla stated that its position was now that, in common with the remainder of the withheld material, it was exempt from release under section 29(1) of the FOI Act. I wrote to the applicant to put her on notice of this development and to afford her the opportunity to make any further submissions that she wished. The applicant did not make any further submissions.
Furthermore, in submissions received from Tusla in the course of this review, while relying primarily on section 29(1) of the FOI Act, it also made a passing reference to section 30(1)(a), which it stated also applied to exempt the records from release. In carrying out the review, I formed the opinion that I was required to consider the potential applicability of section 30(1)(a). I therefore sought more detailed submissions on this provision of the FOI Act from Tusla, which it subsequently provided. I also contacted the applicant to put her on notice of the potential applicability of section 30(1)(a), and invited her to make any further submissions that she wished. No further submissions were received from the applicant on this point.
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 correspondence exchanged between the parties in the course of the applicant’s request, as well as to the submissions made to this Office by Tusla in support of its decision on the request. 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.
This review is solely concerned with whether Tusla was justified under sections 29(1) and 30(1)(a) of the FOI Act in withholding the information in the records sought by the applicant.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, 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.
Secondly, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to a requester’s motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.
Thirdly, it should be noted that, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act 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 information at issue is limited.
Finally, I wish to note that section 22(12)(b) of the FOI Act provides that, when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on Tusla to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.
The records at issue
In the schedule of records provided by Tusla, it identified seven records, running to a total of 15 pages, that came within the scope of the applicant’s FOI request. Although they are not numbered as such on the schedule, for the purposes of this review I will refer to the records at issue as records 1 to 7. Although, as noted above, the requirements of section 25(3) of the FOI Act mean that the extent to which I can describe the contents of the records is limited, I believe I am free to note that each of the records is an internal Tusla document relating to the company, and to Tusla’s inspections of its premises. The records take the form of tables, submission forms and minutes of meetings, and include inspection findings and observations, timelines, assigned risk ratings and notes on the compliance history of the company.
Section 29(1)
Section 29(1) of the FOI Act provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met. It should also be noted that the exemption does not apply in so far as the record(s) contain any of the information or matter referred to in section 29(2) of the Act. Accordingly, where an FOI body is relying on section 29(1) for the refusal of a record, it must also consider whether section 29(2) applies in relation to the record concerned.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
The public interest test at section 29(1)(b) is a strong test, and any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. This Office has previously held that the FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29(1) of the FOI Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of this Office how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
In its submissions, Tusla first of all noted that it has certain statutory obligations under the Child Care Act 1991, as amended. In particular, through its Early Years Inspectorate (EYI), Tusla stated that it is the independent statutory regulator of early years services in Ireland. Tusla stated that, in carrying out this role, it has a legislative mandate to assess regulatory compliance, through the registration and inspection of such services. Furthermore, Tusla noted that under the Child Care Act 1991 (Early Years Services) Regulations 1991, it is a prosecutorial body with the power to investigate and, where necessary, execute enforcement actions to compel early years service providers to take steps to ensure the health, safety, welfare and development of children attending the services. Tusla outlined that, as such enforcement actions could have a significant adverse effect on those early years services in respect of which they are taken, enforcement is subject to the oversight of the Courts. As such, Tusla advised that it has specific processes in place to ensure Early Years regulatory inspections are undertaken, and any subsequent decisions made, in a fair, transparent and consistent manner. Tusla outlined that the records at issue emanated from inspections in June 2023 of a number of premises operated by the company.
Tusla argued that section 29(1) applied to exempt the records from release (in whole or part) on the basis that the information at issue related to a decision-making process concerning the exercise of its statutory early years service regulatory and enforcement powers. As the relevant deliberative process for the purposes of section 29(1)(a), Tusla identified its analysis, which it argued was contained in the records, of the company’s early years service inspection history. According to Tusla, this included observations on regulatory compliance and considerations of regulatory intelligence, with the purpose of informing its decision-making at a meeting convened by the senior management of its Early Years Operations Department. Tusla stated that the purpose of this meeting was to review the company’s compliance history and consider all regulatory intelligence to assess the potential risk to children, with a view to determining an appropriate regulatory response in line with the relevant statutory requirements. Tusla argued that the records demonstrated its senior managers to be engaged in the consideration of information and evidence amassed through the relevant inspection processes, and stated that such consideration was a crucial component in the determination of fair, proportionate and appropriate regulatory judgements which informed its decisions. Tusla argued that the records contained material relating to its gathering and weighing up of information, for the purpose of determining appropriate regulatory responses, and contended that this constituted a deliberative process for the purposes of section 29(1)(a). It also stated that such a conclusion was supported by a review of the released portions of the requested documents, which it said clearly demonstrated that a process of deliberation was underway at the meeting at issue.
I have considered Tusla’s arguments and have reviewed the records that it fully and partly withheld under section 29(1), and I find as follows in relation to section 29(1)(a). As outlined above, in order for a record to be exempt under section 29(1), what first must be established is that the record contains matter relating to the deliberative processes of an FOI body. In its submissions, Tusla purported to identify, as the relevant deliberative processes, its analysis of the company’s early years service inspection history, including various observations on regulatory compliance and intelligence. While I would be prepared to accept that such an activity might, in some circumstances, constitute a “deliberative process” for the purposes of section 29(1)(a), based on an examination of the records I am not satisfied that the records contain matter relating to such deliberative processes . In taking this view, I have considered Tusla’s role with regard to the company. The Commissioner has previously drawn a distinction between an FOI body being engaged in a monitoring or supervisory role and being engaged in a deliberative process. It seems to me that the records at issue show Tusla to be undertaking what could be better described as a monitoring role, rather than engaging in a deliberative process.
Furthermore, even if one was to disregard the distinction between an FOI body being engaged in a monitoring/supervisory role and being engaged in a deliberative process, based on the contents of the records I remain unconvinced that they demonstrate Tusla to be involved in some weighing up or evaluation of competing options or the consideration of proposals or courses of action in respect of the governance of the company, such as might constitute a deliberative process.
For example, record 1 (which Tusla withheld in full) seems to me to contain some basic factual information relating to the company’s various premises (for example whether it provides full or part time daycare), as well as the date on which Tusla inspections of the premises were carried out. It is not clear to me how this information in the record might be said to constitute material relating to Tusla’s deliberative processes. Moreover, certain other information in record 1 seems to me to comprise findings of fact made by Tusla, on the basis of inspections it carried out of the company’s various premises. However, this information does not, in my view, constitute information relating to Tusla’s deliberative processes. For example, it is not information that would appear to reveal anything about the thinking process which might inform Tusla’s decision making, and nor does it show Tusla to be engaged in a process of weighing or considering information before it, or reflecting upon the reasons for or against a particular choice. The information in the record does not show Tusla to be engaged in the evaluation of competing options, proposals or courses of action. Rather, it seems to me, this information in record 1 sets out a series of finding of fact based on inspections. While such findings may well have fed into a decision making process within Tusla, it does not seem to me that record 1 itself contains material relating to that decision making process.
Similarly, in relation to record 2, the information that was withheld in the record relates to risk ratings assigned to various of the company’s premises, as well as information relating to whether the premises were compliant or otherwise across a number of areas. Again, it seems to me that this information comprises findings of fact made by Tusla based on its investigatory procedures. It does not, in my view, show Tusla to be engaged in weighing up information or competing courses of action, or debating the reasons for or against a particular course of action, or discussing competing options or proposals, such as might constitute material relating to its deliberative processes.
Record 3, which again Tusla withheld in full, again seems to me to contain some basic factual information – such as the date on which various premises belonging to the company were inspected – that I cannot accept is subject to section 29(1)(a). Elsewhere in the record, information is provided on the inspections that were carried out, including the times when inspectors arrived, the ratio of staff to children in the premises, the times of arrival of staff, and other similar information. Again, this seems to me to constitute a series of findings of fact regarding staffing levels, etc, in the various premises on the dates they were inspected by Tusla. Again, this is not information that in my view demonstrates Tusla balancing competing courses of action, considering different options and weighing up information before it. While the information in the record might well be of a type that may feed into a deliberative process, the record does not reveal anything about the manner in which any such deliberative process was carried out.
The material redacted from record 4 is the risk rating assigned to various premises run by the company, as well as the applicable Early Years regulations. Once more, it is not clear to me how this might be said to relate to the deliberative processes of Tusla. It seems to me that, while the risk rating assigned to each premises is a subjective value judgement, the record itself reveals nothing about the thinking process that led to the assignation of the rating to each premises.
In relation to record 5, certain material has been redacted from the minutes of a meeting of Tusla’s Senior Management EYI Operations Department. This meeting appears to have been specifically concerned with the company. Again, I am not satisfied that the information redacted from this record under section 29(1) comprises material related to Tusla’s deliberative processes. The material redacted from the first paragraph of page 11, for example, seems to me to relate to findings of fact made by Tusla in relation to the company, but says nothing about the deliberative processes which may have underpinned such findings. Similarly, the information withheld from the second paragraph of page 11 simply details a list of documents that Tusla had reviewed. This does not reveal anything about competing options or course of actions or weighing up proposed next steps. By the same token, the material redacted from the third paragraph of page 11 and the first paragraph of page 12 comprises details of a series of observations made by Tusla in relation to the company. Again, it does not seem to me that these reveal Tusla to be engaged in any kind of consideration of the different options available to it, or of possible next steps, such as might constitute a deliberative process.
In relation to record 6 (which, as outlined above, Tusla initially withheld under section 15(1)(i) of the FOI Act, before subsequently citing section 29(1)(a)), Tusla advised that this record concerned the possible referral of the company to the National Registration Enforcement Panel (NREP). Tusla advised that the NREP is a high-level forum internal to Tusla, which is authorised to take regulatory enforcement where warranted, such as in cases where services have been confirmed as operating contrary to the requirements of the legislation and are deemed to pose an identified or potential risk to the health and welfare of children. Tusla stated that, once a service is referred to the NREP it remains under the jurisdiction of that panel until the concerns are closed out. According to Tusla, the purpose of the NREP is to ensure that a proportionate response is taken to enforcement, and it is empowered to take appropriate and targeted action to reduce the risk of harm, or actual harm to children, up to and including prosecution. Tusla noted that services under the jurisdiction of the NREP are subject to fair procedures and right of reply at all stages of the enforcement process. In respect of the applicability of section 29(1) to the record, Tusla argued that it, in common with the other records at issue, it formed part of a suite of supporting documents compiled to inform-decision making at a meeting of the senior management of the Early Years Operations Department on 10 March 23, to determine an appropriate regulatory response in this particular case. It stated that the document comprising record 6 was also prepared to assist enforcement considerations by the NREP which retained ultimate jurisdiction in this case.
I fully accept that the record is one that may have formed a suite of supporting documents used to inform decision-making at senior management level in Tusla. However, it does not necessarily follow from this fact that the contents of the record contain matter relating to Tusla’s deliberative processes for the purposes of section 29(1). I have examined the record and note first of all that certain information therein is basic factual information about the company (its name, address, names of owners, etc), and I cannot see how this might be subject to section 29(1). Elsewhere in the record, specific grounds for concern in relation to the company are set out. These, again, appear to me to be findings of fact, and – while it is information that may well have fed into a decision on the part of Tusla’s senior management – I do not consider that, of itself, it demonstrates Tusla to be engaged in a process of balancing different options or considering competing courses of action or alternative steps, such as might constitute a deliberative process for the purposes of section 29(1).
Record 7 is a table showing the compliance history of the company. Again, this seems to me to contain findings of fact. It does not reveal anything of the internal discussions that took place within Tusla that may have led to its decision to take one or other course of action.
In its submissions, Tusla cited a previous decision of this Office (in case OIC- 132345) in support of its position that the material at issue in this case was exempt under section 29(1) of the FOI Act, and I wish to address Tusla’s reliance on this previous decision. I consider that this previous case can be distinguished on its facts from the matter at hand. In the decision in case OIC-132345, the investigator (in finding that Tusla was justified in refusing access to records under section 29(1) of the FOI Act) set out that the records at issue contained such elements as relevant reports and notices in draft form, and included suggestions, comments and track changes from Tusla line management, as well as emails between an inspector and line management discussing changes to the records. The investigator concluded that this material showed Tusla to be engaged in the process of gathering and weighing up of information, in satisfaction of subsection (a) of section 29(1). I am satisfied that the information at issue in this case is of a different nature. It does not appear to be the case, for example, that any of the records at issue in this case are in draft or working format. Similarly, there is nothing in the records that can be said to be in the nature of suggestions, comments, edits or proposed changes. As I have outlined in my analysis above, the vast majority of the information in the records at issue in this case appears to me to essentially take the form of various findings of fact in relation to the company. While I accept that such information may have fed into any decision taken by Tusla, it does not, in my view, reveal Tusla to be engaged in a process of weighing up information or discussing competing options in terms of its next steps.
For the reasons outlined in my analysis above, I do not find that the records contain information relating to the deliberative processes of section 29(1)(a) of the FOI Act. In circumstances where the requirements of section 29(1)(a) have not been met, I am not required to go on to consider whether section 29(1)(b) might be applicable. I find that the records are not exempt from release under section 29(1) of the FOI Act.
Section 30(1)(a)
Section 30(1)(a) of the FO Act provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body, or the procedures or methods employed for the conduct thereof.
Where an FOI body relies on section 30(1)(a) it should, firstly, identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, secondly, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for ‘any’ draft report.
In examining the merits of an FOI body’s view that the harm could reasonably be expected, the Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
In its submissions on section 30(1)(a), Tusla stated that Part VII of the Child Care Act, 1991 (as amended by insertion by Part XII of the Child and Family Agency Act, 2013), confers upon it – through its EYI – significant powers of inspection and regulation for the purpose of securing the health, safety, welfare and development of children attending early years services. Tusla stated that the same legislative provisions also conferred upon it significant powers of enforcement – up to and including prosecution – to compel early years services to meet the particulars prescribed by the Child Care Act, 1991 (Early Years Services) Regulations, 2016. Tusla stated that, through the combined effect of these statutory provisions, it acts in a law enforcement capacity to ensure compliance by early years services with the legislative requirements proscribed by the State to safeguard and promote the wellbeing of children in their care. Furthermore, according to Tusla, this is compounded by section 9(2) of the Child and Family Agency Act, 2013, which places a statutory obligation on it to regard the best interests of the child as the paramount consideration in the exercise of its roles and functions.
Tusla argued that, in order to discharge these statutory responsibilities, its EYI is compelled to undertake examinations, investigations and enquiries through various means, such as inspection and the consideration of regulatory intelligence amassed through many different sources, to make informed determinations of legislative compliance by early years services. Tusla contended that the records at question relate to the processes of examination, investigation and enquiry that it employed for the purposes of law enforcement in line with the legislative provisions above. Specifically, Tusla argued that the records contain matters relating to an examination of combined regulatory intelligence and enforcement considerations across multiple early years services run by the applicant, to aid it in the exercise of its law enforcement capacity as a statutory regulator.
I have considered the contents of the records in light of the arguments made by Tusla under section 30(1)(a) and find as follows. Firstly, I would accept that Tusla has identified a relevant function for the purposes of section 30(1)(a), namely the examinations, investigations and enquiries that it is required to carry out in order to perform its statutory function in inspecting and regulating providers of early years services.
Less straightforward is the question of whether Tusla has identified a relevant harm to the effectiveness of such examinations, investigations, etc, that it believes would follow from the release of the records. In the first instance, it seems to me that, while in its submissions on section 30(1)(a) Tusla has outlined the relevant statutory function and noted that it is required to undertake examinations, investigations and enquiries in order to fulfil the role, it has not specified how the conduct of such examinations, investigations and enquiries would be prejudiced by the release of the information in the records.
However, I also note that, in its original submissions addressing section 29(1) of the FOI Act, Tusla argued that the release of the records could impair the effectiveness of its regulatory functions. Applying this argument to the requirements of section 30(1)(a), I would accept that Tusla has identified a relevant harm that it believes would flow from the release of the records.
Having so found, it remains for me to consider the extent to which Tusla’s expectation of harm is reasonable. Again, I must note that, in its submissions on section 30(1)(a), Tusla has not, to my mind, set out the manner in which it considers the release of the records could reasonably be expected to give rise to the harm envisaged.
For example, as I have noted above in my analysis of section 29(1), much of the information in the records comprises, to my mind, relatively basic factual material relating variously to the company’s premises, Tusla’s inspections of same, the dates on which such inspections occurred, details of staffing levels in the various premises on the date when inspections were carried out and the company’s compliance history. This information reveals little about Tusla’s investigative processes and nothing, it seems to me, the release of which could be expected to cause harm to those processes. I have also noted that record 1 contains findings of fact made by Tusla on the basis of its inspections. While I would accept that this information does reveal something of the outcome of Tusla’s investigations, it is not clear to me how the release of this information might reasonably be expected to adversely affect those investigations.
Similarly, I have noted above that records 2 and 4 contain risk ratings assigned to various of the company’s premises, as well as information relating to whether the premises were compliant or otherwise across a number of areas. Again, while I would accept that this information goes somewhat to the investigative methods employed by Tusla, it is not apparent to me how its release might harm Tusla’s employment of those methods, either in this case or in future investigations. In record 6, I have identified information relating to the specific grounds for concern in relation to the company. While this may have fed into Tusla’s decision to carry out an investigation of the company, or inspections of its premises, once again I am unclear as to the manner in which the release of this information could reasonably be expected to harm Tusla’s performance of such inspections and investigations.
In sum, while I accept that Tusla has identified a relevant function for the purposes of section 30(1)(a), and that it has stated that it expects this function to be harmed by the release of the records, I take the view that Tusla has not set out the manner in which it expects such harm could reasonably be expected to flow from the release of the records, and nor can I envisage a manner in which such harms might occur. I find that the records are not exempt under section 30(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of Tusla. I find the records at issue are not exempt from release under either sections 29(1) or 30(1)(a) of the FOI Act, and I direct their release.
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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Neill Dougan
Investigator