Mr X and Tusla: The Child and Family Agency

JudgeStephen Rafferty Senior Investigator
Judgment Date03 January 2017
Case OutcomeThe Senior Investigator varied Tusla's decision. He found that Tusla was justified under sections 11(4), 15(1)(a) and 31(2) of the FOI Act in its decision to refuse parts of the request, but also directed that Tusla undertake a fresh decision making process in relation to emails that were located in the course of this review.
CourtInformation Commission
Record Number160234
RespondentTUSLA
Case Number: 160234
Whether Tusla was justified in refusing the applicant's request for access to records relating to vaccine trials on the basis that relevant records pre-date commencement of the FOI Act, that other post-commencement records relate to the business or proceedings of a Commission of Investigation, and that no further relevant records can be found after all reasonable steps to ascertain their whereabouts have been taken
Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
Background

On 22 December 2015 the applicant made a request to Tusla for all records held by it relating to vaccine trials, including specific categories of records that he deemed as falling within scope of his broader request.

Tulsa issued a decision on the applicant's request on 5 February 2016. It refused the request under sections 15(1)(c) and 37 of the FOI Act, additionally stating that the cost associated with fulfilling the applicant's request would be €3,436.

The applicant requested an internal review of Tusla's decision on 9 March 2016. On 27 April 2016 the applicant contacted this Office on the basis that Tusla was late in issuing its internal review decision. On 19 May 2016, Tusla issued an internal review decision in which it upheld its original decision. On 25 May 2016, the applicant stated that he wished a review of Tusla's decision to refuse the request to proceed.

Having received submissions from both parties, I have decided to conclude this review by way of a formal, binding decision. In carrying out this review, I have had regard to the correspondence between Tusla and the applicant, and to the correspondence between this Office and both Tusla and the applicant on the matter.

Scope of Review

A review by the Commissioner under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner [2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

During the course of this review, Tusla made fresh arguments, that had not been raised in its decisions, claiming that many of the records sought by the applicant in fact pre-date commencement of the FOI Act and that the balance of the records located by it relate to the business or proceedings of a Commission of Investigation. As this review is considered to be de novo, I am satisfied that it is appropriate to consider Tusla's arguments, notwithstanding that it now wishes to rely upon exemptions not originally applied in support of its refusal to grant the request.

Accordingly, this review is concerned solely with the questions of whether Tusla was justified, under sections 11(4), 31(2) and 15(1)(a) of the FOI Act, in refusing the applicant's request for access to records relating to vaccine trials on the respective bases that some relevant records were created before the date on which the FOI Act took effect in relation to records held by Tusla (i.e. before 21 April 1998); that other records relate to the business or proceedings of a Commission of Investigation; and that no further relevant records apart from those already mentioned exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matter

The applicant is clearly frustrated by what he sees as Tusla having changed its position on a number of occasions during the processing of his request and in the course of this review. He has also argued that records of the types falling within scope of his request in this case had been released to him on foot of previous requests and that Tusla did not seek to clim that the records were exempt by reason of their age or because they relate to the business or proceedings of a Commission of Investigation.

The applicant's frustration is understandable, particularly given the length of time it took to process his request in the first instance (five months). However, the fact remains that Tusla is entitled to have its arguments propoerly considered by this Office, given the de novo nature of the review. Furthermore, any previous practice on the part of the part of Tusla in realtion to the release of records of a similar nature is not a relevant consideration for the purposes of this review. Rather, the review is confined to a determination of whether Tusla was justified under the provisions of the FOI Act in its decision to refuse access to records coming within scope of the applicant's specific request in this case.

Analysis and Findings

As outlined above, in the course of this review Tusla adopted a different position in relation to the applicant's request to that set out in its original decisions. Nevertheless, I feel that it is appropriate in the circumstances of this case to comment briefly on certain aspects of the manner in which Tusla originally responded to the request, before considering its revised position.

Original Grounds for Refusal
In its original and internal review decisions, Tusla's main ground for refusing the applicant's request was under section 15(1)(c) of the FOI Act, which permits an FOI body to refuse a request for records where the body considers that granting the request would cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the body.
However, under section 15(4), before a body can refuse a request under section 15(1)(c), it must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4).

While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), this Office takes the view that the mere offer to amend a request so that it no longer falls to be refused under section 15(1)(c), of itself, is generally not sufficient for the purposes of compliance with the section. In holding this view, this Office is cognisant of the general requirement on FOI bodies, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests. As such, this Office takes the view that before a body can refuse a request under section 15(1)(c), it must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances.

The applicant expressed his dissatisfaction with the manner in which Tusla had responded to his...

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