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Mr. X and TUSLA (FOI Act 2014)

Case Number: 160110

Whether the Agency was justified in its decision to refuse access in full or in part to certain records relating to the applicant and his family, under sections 35(1)(a) and 37(1) 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 5 August 2015, the Agency received a request from the applicant under the FOI Act for access to records concerning an assessment of the applicant and his family, following a complaint to a Social Work Department. The Agency granted access to some of the records and refused access in full or in part to others on the basis of section 37(1) of the FOI Act. Following a request for an internal review, the Agency released an additional record but refused access in full or in part to other records on the basis of sections 35(1)(a), 37(1) and 37(7) of the Act. On 4 March 2016, this Office received from the applicant an application for a review of the decision of the Agency.

In conducting my review, I have had regard to the submissions of the Agency 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

This review is concerned with whether the Agency was justified in deciding to refuse access, in full or in part, to records on the basis of sections 35(1)(a) and 37(1) of the FOI Act.

 

Preliminary Matters

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.

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.

In its decision, the Agency referred to section 18 of the FOI Act in its internal review decision. While 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, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, 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.

I also note that the records at issue in this case are of a private and personal nature. When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
Findings

Section 37
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 identified, by number, 64 records which were relevant to the applicant's request, of which 23 were released in full, 33 were withheld in part and eight records were refused. Some of the records, so numbered, which were withheld in full, or in part, are duplicates of other records to which an earlier number has also been allocated for the purposes of the review by the Agency.

I stated earlier that the extent to which I can describe the contents of the records is limited. However, I can confirm that all of the withheld material in the records at issue contains information about persons connected to the applicant's family and other third parties.

In his application to this Office, the applicant referred to what he regards as an unresolved matter of two outstanding allegations against him. In its internal review decision, the Agency clarified that both withheld allegations, detailed in record 11 (released in part), did not relate directly to the applicant but related to the personal information of third parties.

Having reviewed the relevant records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant and his children that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) and/or section 37(7) of the Act applies to the 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; (b) the third parties have not consented to the release of that information; (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.
I note that the applicant when requested by this Office, provided a letter from his wife stating that she authorised "the release of any files pertaining to the initial request", and giving the applicant authority to receive any documents relating to her. I have taken this into consideration in my examination of the records at issue.

 

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.
I am satisfied that the release of the information at issue would not be to the benefit of the third parties concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals 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] IESC 26 (available at www.oic.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law" must be distinguished from a private interest for the purpose of section 37(5)(a).

In relation to section 37(5)(a), the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. 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.
The information at issue in this case is of a private and personal nature. The applicant states in his letter of application that his "primary concern...is that of the thirteen original allegations only eleven to date have been made known to me", and that ..."the original allegations proved deeply distressing for both [him]self and [his] extended family". As mentioned earlier, the Agency addressed the matter of allegations in its internal review decision. The released records show that the applicant was made aware of those who were to be contacted for "background checks".
While there is a public interest in openness and transparency in the manner in which the Agency performs its functions, I am of the opinion that this has been met to a large degree by the full and partial release of many of the records 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(8) - Access to the personal information of minors
Section 37(8)(a) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access where
"the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual".
The FOI Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009), continued in force by section 54(2) and Schedule 5 of the FOI Act 2014, in turn, make provision for access to personal information of minors and deceased persons in certain circumstances.
In the particular circumstances of this case, I am satisfied that there is no withheld information about the children to which the provisions of section 37(8) can be applied. This being the case, I am satisfied that it is not necessary for me to give detailed consideration to the application of section 37(8).

Accordingly, I find that the Agency was justified in its decision to refuse access to the withheld records and parts of records, under section 37(1) and/or section 37(7) of the FOI Act.

Having found section 37(1) and/or section 37(7) to apply to the withheld records, I do not find it necessary to make findings on whether the information qualifies for exemption on the basis that it was obtained in confidence (section 35(1)(a) of the Act refers). However, given the circumstances and context of parts of the records, it seems likely to me that the information was given to the agency on the understanding that it would be treated by it as confidential.

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Agency

 

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 


Elizabeth Dolan
Senior Investigator