Mr D and Tusla

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 29 July 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
• Court: Information Commission
• Record Number: 140300
• Respondent: Tusla

Whether the Agency was justified in refusing the applicant's request for access to records relating to him on the basis of section 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 13 February 2014, the applicant sought access to "documents and information" held by the Health Service Executive (HSE) regarding himself. The HSE replied on the 26 February 2014 requesting clarification and further details of the scope of the applicant's request. The applicant, on 11 March 2014, stated that the information he sought was probably held by the Children and Family Services. A decision letter refusing access to records was sent to the applicant from one HSE area. However, the applicant was advised that records had been located in another area and he would have a decision on that in due course. On 14 July 2014, a decision was made by the Agency to partially grant the request. On 21 July 2014, the applicant requested an internal review of the Agency's decision. On 6 October 2014, the applicant was notified of the outcome of the internal review. 72 records were identified as being covered by the request at internal review stage. 33 records were released in full to the applicant. 23 were partially released and access to 16 records was refused in full on the basis of section 28 of the FOI Act.

On 23 October 2014, 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 Agency and 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 solely with records that relate to the applicant. The initial request was for "all documents and information held by the HSE regarding myself". This is important to note because, given the nature of the records, there is a considerable amount of joint personal information and information that relates to persons other than the applicant (third parties).

The Agency provided three files to this Office for review; File 1, File 2 and "Correspondence to and from [applicant]". Three records from File 1 were released in full to the applicant and access to the rest of this file was refused on the basis that it was not covered by the request. Having reviewed these records, I am satisfied that they do not relate to the applicant and therefore are not within the scope of this review. Access was granted in full to the records contained on the file "Correspondence to and from [applicant]". The records which are the subject of this review are therefore contained on File 2 and this review deals solely with that file. Any reference to record numbers throughout this decision is a reference to the record number assigned to records on File 2.

The vast majority of the records on the file provided by the Agency relate to third parties, in particular, to the applicant's son, his former partner (the mother of his son) and her other children who are not biologically related to the applicant.

During the course of the review, the Agency agreed to further release records 2, 18 and 32 in full. On examination of the records it also appears that records 5 and 39 do not contain any information in relation to the applicant and are therefore not covered by the scope of the request.

The Investigator in this Office identified a further six records that, although primarily relating to third parties, do contain some mention of the applicant and are therefore within the scope of the applicant's request. Those records are numbered 32, 80, 90, 93, 94 and 110.

This review is therefore concerned with 78 records. 36 of those records were released in full. 21 records were released with redactions and access to a further 21 records was refused on the basis of section 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, but 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...