Mr and Mrs X and TUSLA: Child and Family Agency (TUSLA) (FOI Act 2014)

• Judge: Senior Investigator
• Judgment Date: 28 March 2018
• Case Outcome: The Senior Investigator varied TUSLA's decision. She annulled its decision to refuse access to one record and directed the release of that record, subject to the redaction of personal information of individuals other than the applicants. She affirmed its decision to refuse access to the remaining records under sections 31 and 37 of the FOI Act.
• Court: Information Commission
• Record Number: 170404
• Respondent: TUSLA: Child and Family Agency (TUSLA)

Whether TUSLA was justified in deciding to refuse access to parts of the applicants' fostering files on the grounds that the records are exempt from release under sections 31, 35 and 37 of the FOI Act

28 March 2018

Background

TUSLA received a request on 17 May 2017 for access to information relating to the applicants and held by TUSLA, Waterford between 1 August 2016 and 12 May 2017. The request also sought access to information held by TUSLA, Dublin between 18 April 2016 and 12 May 2017. The request was partially granted but access was refused to certain information on the basis of sections 15(administrative), 31(contempt of court), 35(confidentiality) and 37(personal information) of the FOI Act. TUSLA treated this request as two separate requests, one for Waterford and one for Dublin, and so two decisions issued in this matter. For the purposes of this review, and as the applicants submitted one request, the application for review will be treated as a whole.

The applicants sought an internal review of the decisions to refuse access to certain information and on the 24 August 2017 and 29 August 2017, TUSLA affirmed the original decisions. On 15 August 2017, the applicants applied to this Office for a review of TUSLA's decision.

I have decided to conclude this review by way of a formal, binding decision. In conducting the review I have had regard to TUSLA's decision on the matter; TUSLA's communications with this Office; the applicants' communications with this Office; communications between the applicants and TUSLA on the matter and the content of the withheld records provided to this Office by TUSLA for the purposes of this review.

Scope of the Review

In the schedule provided with the records TUSLA identified 158 records as coming within the scope of the request in Waterford. 66 were released, partial access was granted to 27 records and access was refused to 65 records on the basis of sections 31, 35 and 37 of the FOI Act. In the schedule relating to records found in Dublin, access was granted in full to all records save one record to which partial access was granted.

During the course of this review a further 45 records were identified as coming within the scope of the applicants' request. Access was granted in full to 23 of those records. Access to 9 of the records was refused on the basis that they had been dealt with in a previous decision of this Office and access to 9 records was refused on the basis that they were duplicates of records already dealt with above. The schedule notes that record A4 is refused on the basis of section 31, but goes on to note that this record is a duplicate of records 78/79 of the original Waterford schedule and so I include it in the list of duplicated records. Access to two records was refused on the basis of sections 31(1)(a) and (b) and access was partially granted to two further records, with some redactions made on the basis of section 37 of the FOI Act.

The applicants had previously made a request for a review to this Office and a decision on that request was made in Case Number 160543. Nothing in this review has indicated to me that there has been any material change in circumstances since that decision and so I do not propose to reconsider the records already addressed in Decision 160543. I therefore accept that the 9 records referred to above are outside the scope of this review, and am also satisfied that the 8 records identified as duplicates are in fact duplicates. From the further records identified, therefore, I consider that 5 remain to be considered in this review.

The applicants also raised the issue of missing records. They noted that they did not have the attachments referred to on record 93 of the Waterford schedule and that an email must exist to accompany a document identified as C1 on the later Waterford schedule. In relation to the attachments to record 93, I can confirm that the letter referred to is included in the schedule at numbers 8-10 and therefore included in the scope of the review. The remaining attachments are publically available on the TUSLA website and so will not be included in this review. Finally, following enquiries by this Office to TUSLA in relation to a cover email to record C1, I am satisfied that there is no such cover email.

Having regard to TUSLA's schedules of records, this review is concerned with whether TUSLA was justified in refusing access to certain information under sections 31, 35 and 37 of the FOI Act. I will refer to the redacted parts of the partially granted records and the withheld records collectively as "the records". I have adopted the numbering used by TUSLA in its schedules of records.

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points.

First, the records which TUSLA provided to this Office contain a significant number of duplicates and many are numbered in the wrong order. This made the review process more protracted and less straightforward than it should have been. It is incumbent on FOI bodies to put the resources in place in order to be able to deal with FOI requests and reviews appropriately.

Secondly, it is important 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 me that its decision is justified.

Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is very limited.

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