Mr B and Tusla, Child and Family Agency

• Court: Information Commission
• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 15 September 2015
• Case Outcome: The Senior Investigator found that the Agency was justified in deciding to refuse access to the records, in accordance with section 28 of the FOI Act. She affirmed the decision of the Agency.
• Record Number: 150030
• Respondent: Tusla, Child and Family Agency

Whether the Agency was justified in refusing the applicant's request for access to records relating to him and his daughter on the basis of sections 26 and 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Background

In a request dated 20 March 2013, but not received by the Health Service Executive (the HSE) until 24 April 2013, the applicant sought access to details pertaining to a family conference held in relation to his daughter as well as all information pertaining to himself and "all documents legal or otherwise being used in Court of Law by the HSE pertaining to my daughters health and welfare." The applicant did not provide identification at the time of his request so the file was closed by the HSE. However, it was reopened when the applicant provided identification on 9 January 2014. In a telephone conversation with Nicola Peilow of the HSE on 10 January 2014 the applicant clarified that he sought access to social work records in relation to his daughter.

On 11 June 2014, a decision was made by the HSE to partially grant the request. On 7 July 2014, the applicant requested an internal review of that decision. The Agency carried out an internal review and notified the applicant of the outcome on 31 July 2014.

93 records were identified as being covered by the request at internal review stage. 30 records were released in full to the applicant, 51 were partially released and access to 12 records was refused in full on the basis of sections 26 and 28 of the FOI Act.

On 28 January 2015, the applicant applied to this Office for a review of the Agency's decision.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the provisions of the FOI Act and to the submissions made by the applicant. I have also examined the files which were provided to this Office for the purposes of the review and the correspondence that was exchanged between the parties.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned with 63 social work records that relate to the applicant and his daughter and whether or not the Agency was correct to refuse, or partially refuse, access to those records on the basis of sections 26 and 28 of the FOI Act.

Analysis and Findings

Preliminary Matters
Before dealing with the relevant exemptions, there are some preliminary points I wish to make.

The first point to note is that, under section 8(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act). It is worth mentioning that it is outside the remit of the Information Commissioner to carry out any investigation or make any findings on how the public body carried out its duties in the circumstances surrounding a review; rather, the Commissioner's role is to determine whether or not records were properly withheld.

The second point has to do with the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI 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 neither the definition of a record nor the provisions of section 13 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.

Finally, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during 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 records at issue and the circumstances of their creation is somewhat limited.

Section 28 and Personal Information

The records at issue relate to social work involvement with the applicant, his former partner and their daughter, who resides with her maternal grandparents. I consider that section 28, which is a mandatory exemption, is the most appropriate exemption to examine given the extent of personal information that appears in the records.

Section 28(1) of the FOI Act provides that access to a record shall be refused if access would...