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Mr. X and TUSLA - Child and Family Agency (FOI Act 2014)

Case Number: 160175

Whether the Agency was justified in its decision to refuse access to certain records relating to the applicant and his children, under section 15(1)(a) and sections 31 and 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 1 October 2015, the applicant made a request under the FOI Act for access to records concerning "social work department files" about himself and two of his children. The Agency granted access to some of the records and withheld others in full on the basis of sections 15(1)(a), 31, 35 and 37 of the FOI Act. Following a request for an internal review, the Agency affirmed the original decision on the basis of sections 15(1)(a), 31(1)(b) and 37(1) of the Act. On 20 April 2016, this Office received an application from the applicant for a review of the decision of the Agency.

In conducting my review, I have had regard to the submissions of the Agency and the applicant, and to correspondence between the applicant, the Agency and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Scope of Review

The records at issue concern two sets of files. One set of files is in the name of the applicant's younger child and is identified by the Agency as containing files 1, 2 and 3. In its decision the Agency exempted all of the records in those files on the basis of section 31(1)(b) of the FOI Act. However, in addition to the section 31 exemption, the Agency also exempted a small number of those records on the basis of section 37 of the Act. The second set of files is in the name of the applicant's older child and is identified by the Agency as containing files 1, 2, 3, 4, 5, 6(a), 6(b) and 7. In its decision, the Agency exempted a number of those records on the basis of section 31 and other records on the basis of section 37 of the Act.

This review is concerned with whether the Agency was justified in deciding to refuse access to certain records on the basis of sections 15(1)(a), 31(1)(b) and 37(1) of the FOI Act.

Preliminary Matters

The records associated with this review are sensitive and relate primarily to the care of children. Consequently, 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 disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited. I have considered all of the applicant's detailed submissions although the analysis below does not comment on all of the issues that he raised.

In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. As regards the applicant's submissions about records concerning the children of someone known to him having been released by the HSE/Agency to that person, I can only deal with the review before me and apply the FOI Act to the records in this case. The fact that other records may have been released to other persons is not something that I can take into account.

I note that section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. The Commissioner takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

As noted above, the records at issue in this case are sensitive. When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act, (as opposed to records discovered in Court proceedings), places no restrictions on the type or extent of the subsequent use to which a record may be put. While the applicant has taken issue with the use of the phrase "to the world at large" in circumstances where he is seeking access to records about his children, this approach was upheld by O'Neill J. in the High Court in the case of E.H. and E.P.H. v Information Commissioner [2001] 2 I.R. 463 when he said that in disclosing records "... a head of a public body and the Commissioner must assume that the disclosure of a record will be to the world at large".

Findings

Section 15(1)(a) - search for records held
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases is to review the decision of the public body and to 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 his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A.), available on this Office's website (www.oic.ie).

The applicant stated that information about him had been compiled by the Agency as a result of an investigation. He also stated that in such circumstances the information would be recorded in a single file and referenced in his name. The applicant further stated that even if a file did not exist, other records relating to an investigation about him must exist.

The Agency stated that a file was not created in the name of the applicant. It said that in circumstances relevant to the welfare and protection of children, a separate file is created for each child but that each child's file "will contain information that relates to the [applicant's] wider family unit". The Agency also stated that file records that were created in the names of the applicant's children contain joint personal information. However, it further stated that many records relating to the applicant were readily identified and that, "Notwithstanding that the files are held in the names of individual named children, the applicant was provided with a range of material...". It further stated that there were no files unaccounted for, or misplaced, or misfiled in relation to the applicant.

The position of the Agency is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the Agency to carry out indefinite new searches. The approach of the Agency in relation to placing information about parents on files held on their children reflects the practice observed in other broadly similar cases in the experience of this Office. In view of the information provided by it relating to the searches undertaken and the records identified in the schedule, I consider that the Agency has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

I note that during the course of this review, the Agency confirmed that it will release to the applicant a schedule of all records held (including those released and withheld). If this has not already been done, it should be done now as its provision would clarify the description of the records that were considered in this review.

Section 31(1)(b) - contempt of court
Section 31(1)(b) of the FOI Act provides that:-
"A head shall refuse to grant an FOI request if the record concerned -
...
is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court,..."
The Agency claimed this exemption in respect of court reports related to child care proceedings. Section 31 is a mandatory exemption, i.e. it does not allow the exercise of discretion on the part of the decision maker. The Agency stated that the "sole reason" for the creation of the files concerning the applicant's two children, arose from matters related to the provisions of the Child Care Act 1991.

The In Camera Rule
The in camera rule (i.e. that proceedings be held otherwise than in public) applies to Court proceedings in accordance with Section 29 of the Child Care Act 1991. It is a contempt of Court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. It is clear from my examination of the records exempted under this provision that they were prepared for the Court in the context of proceedings under the Child Care Act. I am satisfied that the records identified in the schedules as exempt under section 31(1)(b) are covered by the in camera rule.
In her judgment in LK and the Information Commissioner [2013] IEHC 373, which addressed records created in the context of child care proceedings, O'Malley J. stated, referring to the judgment of O'Neill J. in EH v Information Commissioner [2001] 2 I.R. 463, that "The Freedom of Information Act is not, as O'Neill J. makes clear, intended to be used in a manner that bypasses the Constitutionally established structures for the administration of justice." O'Malley J. went on to find that:
"The Information Commissioner has no authority to disregard either the statutory provisions relating to the in camera nature of child care proceedings ...... Neither the status of the appellant as a party to District Court proceedings not[r] the purpose for which she wishes to use the report are relevant to his powers in this respect."

I am satisfied that the position as set out in LK and the Information Commissioner applies here and as I am not aware of the existence of any prior judicial authority for the release of these records, I consider that release of these records to the applicant on foot of his FOI request would constitute contempt of Court.

I find, therefore, that section 31(1)(b) applies to the records identified as emanating or derived from the proceedings involving the applicant's children. Having so found, I do not consider it necessary to make a finding on those records in the name of the applicant's younger child which the Agency also exempted under section 37 of the Act.

Section 37
I am satisfied that all of the records contain personal information as defined by section 2 of the FOI Act. This section of the decision applies to any records which do not emanate or derive from proceedings involving the children and which I have found to be exempt from release under section 31(1)(b) above. As such, for the sake of clarity, the records under review in this part of the decision concern those records of the applicant's older child only, and which were exempted by the Agency under section 37 only.

Section 37(1)
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that 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 referred to as joint personal information.

The Agency refused access to a number of records on the basis of section 37(1) and 37(7) of the Act. It stated that refusing access to the records under section 37 of the Act would protect the personal information of persons other than the applicant. The Agency also stated that the set of files requested by the applicant was held in the name of his child. The child is the subject of a Care Order which was granted to the Health Service Executive, pursuant to section 18 of the Child Care Act 1991.

It is clear that most of the records at issue in this case disclose the personal information of parties other than the applicant and that much of this information is of a private and sensitive nature. The information to which access has been refused by the Agency relates to third parties and joint personal information relating to the applicant, his child and, in almost all instances, other individuals.

Record 110 - file 6(a)
However, having examined the records, it is my view that record 110 in file 6(a) contains information that is personal only to the applicant. Consequently, I find that section 37 of the FOI Act does not apply to that record.

I am satisfied that, with the exception of record 110 and a small number of records which are dealt with below, all of the remaining withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant and his child that is inextricably linked to the personal information of other individuals i.e. joint personal information. Accordingly, I find that section 37(1) and/or section 37(7) of the FOI Act applies to those records.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. Having considered the provisions of section 37(2), I am satisfied that (a) the withheld information contained in the records does not relate solely to the applicant; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
In relation to 37(2)(b) which deals with situations where the individual to whom the information relates consents to its release, none of the third parties has consented to the applicant having access to their personal information. As regards the applicant's child, this Office has decided that, in all the circumstances of this case, it would not be appropriate to seek the views, or consent to release, of the child, whose personal information is contained in the records. There are circumstances in which one might reasonably seek the views of children (particularly older children) on a matter affecting their interests and I refer to this matter further below in dealing with the applicant's potential rights under section 37(8) and also in examining the section 37(5)(b) provisions. I have had regard to the content of the records concerned; the potential for upset to the child and to the matter of consent from other affected parties, including the mother of the child.
I find, as a matter of fact, that none of the affected third parties has consented to the release of their personal information and that, accordingly, section 37(2)(b) does not apply.

Section 37(5) - the Public Interest
Section 37(5) of the FOI Act 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 information would be to the benefit of the person to whom the information relates.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011]1 I.R. 729, [2011] IESC 26 - known as "the Rotunda judgment" (available at www.oic.ie). The Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request "made by a private individual" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas or by law". The FOI Act itself recognises a very strong public interest in protecting privacy rights as reflected in both the language of section 37 and the Long Title which clarifies that the Act is intended "to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies...". The right to privacy also has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Moreover, I note that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights.

On the other hand, the FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. Accordingly, privacy rights will 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.

In his application to this Office, the applicant stated that he was seeking access to records in preparation for Court proceedings. It is clear from his submissions that the applicant is pursuing the request and review application in the context of his rejection of allegations made against him. He believes that access to the records could establish certain matters regarding the HSE's interaction with his children and with other parties whom he believes have submitted "untruths" and "fabricated detail". He said that "the parent is entitled to seek and obtain such information that has been gathered and stored in respect of his child(ren)" because without it "the parent cannot ever possess the knowledge required to implement protection and seek justice for himself and his children against the State...". The applicant also referenced the European Convention on Human Rights in regard to the rights of parents and families. It is reasonable to infer that there is some overlap between what constitutes a public interest as against what is a purely private interest. I accept that while the applicant may seek the records for his own private purposes, that private interest overlaps with the public interest in transparency and fair procedure. However, in relation to the applicant's claims that false allegations of sexual abuse were made, it is not the role of the Information Commissioner to make findings of what is, essentially, criminal behaviour under the Protections For Persons Reporting Child Abuse Act 1998, which makes it an offence to make a false statement of child abuse "to an appropriate person", knowing the statement to be false.

As I have pointed out above, under FOI, records are released without any restriction as to how they may be used. In contrast, in the case of a court order for discovery, records are released subject to an undertaking that they are to be utilised solely for the purposes of the legal proceedings in question; no further use or passing-on is allowed. The applicant said that he would never release his children's private information to the public. I note that the majority of the joint personal information in the records is not restricted to that of the applicant and his child. Further, the FOI Act does not make any provision for restricting the use of information released pursuant to an FOI request and therefore, there is no means to enforce any declaration or promise as regards the use of the records now or in the future. The applicant's particular situation at this time (to which he drew attention in the context of his undertaking not to forward the information to others) is, therefore, of limited relevance.

The Long Title of the FOI Act reflects that there is a general public interest in openness and transparency with respect to information held by public bodies, provided that it is consistent with the right to privacy. Moreover, I agree with the applicant insofar as he argues that there is a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions in dealing with allegations of child sexual abuse and the care and safety of children generally. However, having regard to the Rotunda Hospital case, section 13(4) of the FOI Act, and the limits of my remit, I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for this Office to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances. As applied in this case, it means that there is a strong public interest in revealing information that would shed light on whether the HSE and the Agency carried out their functions in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy. The public interest in openness and accountability also extends to the related public interest considerations identified by the applicant (e.g., the public interest in fair treatment by public bodies and in promoting the rights of individuals under the European Convention on Human Rights).

I wish to emphasise that the public interest test does not give me the authority to investigate complaints against public bodies or to act as an alternative dispute mechanism with respect to actions taken by public bodies. The question of whether the applicant should have access to further information in order to pursue a remedy or some other form of redress is a matter for the Courts, which have been given exclusive power under the Constitution for the administration of justice.

With certain limited exceptions not applicable in this case, the Oireachtas has determined that personal information should be given strong protection in response to an FOI request. Even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

It is the case that the applicant has previously been made aware of the circumstances surrounding the taking into care of his children under the Child Care Act. He and his legal advisors were involved in several sets of legal proceedings concerning access, maintenance and related matters. A Care order exists in respect of one of his children until that child reaches 18 years of age, while Interim Care and Supervision orders applied at one stage to the other child. The records show that the applicant and his representatives were in regular contact by way of meetings and correspondence with the HSE concerning care of and access to his children, especially the older of the two.

I find that the released records and related information have served the public interest in openness and accountability to some degree although they do not provide the level of detail that the applicant seeks. I do not accept that the applicant's dissatisfaction with the HSE's /Agency's involvement with his family provides a basis for undermining the privacy rights of the third party individuals concerned under section 37 of the FOI Act in relation to the remaining information at issue. I do not consider that the public interest in the release of withheld information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Section 37(5)(b) - benefit
The question to be addressed in section 37(5)(b) is whether the release of the records would be to the benefit of the persons to whom the information relates, i.e. to the benefit of the applicant's child, the mother of the child, family members and other individuals. As regards those individuals other than the child, I have no reason to believe that release of their personal information to the applicant would be to their benefit. The applicant has argued that he is trying to gain access to the records in order to protect his children and "establish who has made a false allegation". One would accept as a general proposition that it is to the benefit of a child that his/her parents should be given access to all relevant information which bears on the child's health, welfare and general well-being. In the circumstances of this case, the issue of "benefit" has many similarities to the issues of "best interests" under section 37(8) which will be considered below. Because of the nature of the information in the withheld records, the context in which they were created and the fact that the applicant is aware of the circumstances of his children being taken into care and of their situation in the years since then, my view is that, on balance, release of the child's personal information under the FOI Act would not be to the benefit of that child. In any event, because of the extent to which the child's personal information is joined to that of other individuals as it appears in the records, it is not feasible in most instances to consider releasing that information without also releasing that of other persons.

I find, therefore that section 37(5)(b) does not apply in this case.

Section 37(8) - Access to the personal information of minors
Section 37(8) provides for the making of regulations under which the parent or guardian of a person belonging to a specified class of persons may have a right of access to that person's personal information. The FOI Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009) were continued in force by section 54(2) and Schedule 5 of the FOI Act 2014. The regulations provide for a right of access by parents or guardians to records containing personal information relating to minors in certain circumstances. The regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any relevant guidelines published by the Minister, access to the records by the parent/guardian would be in the minor's best interests.

The issue to be decided in relation to the remaining parts of the withheld information, therefore, is whether the best interests of the applicant's child will be served by the release to the applicant of those parts of the records disclosing his child's personal information. Having examined the records, I have identified a small number which contain personal information relating either to the applicant and/or his child i.e. they do not contain personal information of other individuals. Consequently, I find that section 37(8) has potential to apply only to the following records all of which concern the older child:
File 1 - records 222-224 inclusive and 249,
File 2 - record 37 and records 157 and 158, and
File 4 - records 106-108 inclusive

I have had regard to the Regulations and relevant Guidance Notes published by the Minister. One of the Guidance suggestions is that, where appropriate, there should be a consultation with the minor concerned to establish his or her views on the release of his or her personal information to a parent. However, as mentioned above, in the circumstances of this case, I do not consider that it is appropriate to consult with the child concerned.

The Supreme Court held in the case of McK v. The Information Commissioner[2006] IESC 2, available at www.oic.ie, that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. In reaching its judgment, the Supreme Court had regard to the Constitution and observed that the "relationship between parent and child has special status in Ireland". While the records at issue in the McK case related to medical treatment, the Commissioner takes the view that the judgment is likely to apply to any personal information of a minor that is relevant to his or her welfare. This view is supported by the following comments by McMahon J in HSE v. Information Commissioner [2009] 1 IR 700:
"The Supreme Court in N. McK. v. Information Commissioner [2006] IESC 2, [2006] 1 I.R. 260 held that there is a presumption, though rebuttable, that a parent is entitled to access information about the medical care their child is receiving and that the release of such information is in the interest of the child. While this case concerned a parent's right of access to the child's medical records, the Supreme Court did not place undue emphasis on the nature or content of the records in question and I adopt the court's reasoning as being applicable also to the records involved in this case which were concerned with allegations of physical abuse of the child."

Nevertheless, it is apparent from the Supreme Court's repeated references to medical information or medical care that, while the nature or content of the records may not be determinative, it is a relevant factor. The Court stated that "a parent is entitled to information about the medical care a child is receiving so that he or she may make appropriate decisions for the child...". Moreover, under the Constitution, both partners in a marital family are presumed to be acting in the best interests of their child; this presents difficulties where, as in this case, it is not at all clear that both parents are acting in accord. The McK case indicates that reluctance by one parent or guardian to agree to give access to a child's records, is not, in and of itself, sufficient to rebut the presumption to which a parent is entitled. However, in McK , the mother of the child was deceased and the records related to the child's treatment for a viral infection. The circumstances of the McK case are therefore distinguishable from those in this case.

It is not disputed that the applicant is the parent of the child whose personal information appears in the records described above in the context of that child being in State care under a Care Order. The applicant strongly disputes the Agency's implication in its decision that Court proceedings arising from an application for guardianship of his children resulted in findings against him. The Agency confirmed to the Investigator that its comments on guardianship were not intended to refer to the situation concerning the older of the children.

The circumstances in this case include the undisputed existence of a Care Order made by the Court and the child's foster care placement which is ongoing, It is important that any information relating to a child in care - even, for example, that which discloses the fact that they are the subject of a Care Order - must be treated with caution so as to protect the privacy interests of the child. I take the view that provision of the particular records listed above would not enhance the applicant's capacity to make "appropriate decisions for the child". I must bear in mind that the release of the records under FOI has the potential to impact negatively on the best interests of the child having regard to their age, and the circumstances of their life to date. I cannot ignore the views of child protection professionals consulted by the Agency and the wider circumstances apparent from the records as a whole.

Having considered the matter carefully, I find in the circumstances of this case that the best interests of the applicant's child will not be served by the release to the applicant of those records disclosing his child's personal information. I find that it is not appropriate to direct that those details be released under section 37(8) of the FOI Act.

Accordingly, I find that the Agency was justified in its decision to refuse access to all but one of the withheld records under section 37(1) and/or section 37(7) of the FOI Act. I direct that record 110 held in file 6(a) should be released in full to the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Agency with the exception of its decision on record 110 on file 6(a), which I direct for release.

Appeal

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Elizabeth Dolan
Senior Investigator