Ms Y and TUSLA

• Jurisdiction: Ireland
• Judge: Information Commissioner
• Judgment Date: 20 November 2019
• Case Outcome: The Commissioner varied TUSLA's decision. He affirmed its decision on certain records under sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act. He annulled its decision on certain records or parts of records and directed their release. He annulled its decision on certain other records and directed TUSLA to make a fresh decision, having due regard to the provisions of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, S.I. No. 218/2016 and Guidance produced by the Minister for Public Expenditure and Reform.
• Respondent: TUSLA: Child and Family Agency
• Record Number: OIC-53262-W9S7J8
• Court: Information Commission

Whether TUSLA was justified in refusing access to records relating to the applicant and other individuals, under sections 31(1)(a), 35, 37 and 41 of the FOI Act

20 November 2019

Background

The applicant acted through a representative in this matter. On 6 June 2018, the applicant made an FOI request to TUSLA for her care/adoption file in a particular institution. On 3 September 2018, TUSLA issued a decision, in which it granted access to some information and refused access to the remaining records on the grounds that they were exempt under sections 6, 31(1)(a), 35 and 37 of the FOI Act. On 23 September 2018, the applicant applied for an internal review decision. On 23 October 2018, TUSLA issued an internal review decision, in which it affirmed its original decision. On 5 December 2018, the applicant applied to this Office for a review of TUSLA's decision.

In conducting my review, I have had regard to the correspondence between TUSLA and the applicant as described above, as well to correspondence between this Office and both TUSLA and the Adoption Authority of Ireland (AAI). I have also had regard to the contents of the records at issue and the provisions of the FOI Act and the Adoption Act 2010.

Scope of the Review

During the review process, by letter dated 28 March 2019, TUSLA released the following records in full: Records 68, 69, 70, 76. By letter dated 12 April 2019, it then released the following records in part: Records 17, 21, 27, 30, 43 and 114. The information which has been released now falls outside the scope of my review. Furthermore, TUSLA issued an updated schedule of records, in which it also claimed section 41(1) of the FOI Act.

Accordingly, this review is concerned with whether TUSLA was justified in refusing access to the records which remain withheld, under sections 31(1)(a), 35, 37 and 41 of the FOI Act. The applicant queried whether there were missing records and I therefore also consider section 15(1)(a). The applicant’s submissions cover a number of issues relating to the history of her adoption and the handling of her adoption records. I have a great deal of sympathy for the applicant. However, I must emphasise that my role is confined to determining the right of access to records held and whether TUSLA’s decision was justified under the FOI Act.

Finally, TUSLA had initially claimed that certain records were exempt under section 6 of the FOI Act, on the basis that they were records of the AAI. Following correspondence with this Office, TUSLA accepted that section 6 did not apply and claimed sections 37 and/or 41 of the FOI Act over the relevant records instead.

Preliminary Matters

First and foremost, I would like to apologise to the applicant for the length of time which this review has taken to complete. Given the legal issues involved, I considered it appropriate to consult the AAI in this case and ensure that we understood its position fully. This consultation process and the subsequent consideration of legal issues meant that the review took longer than I would have liked. I am grateful to the AAI for its cooperation and to the applicant for her patience.

Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. When this Office made the applicant aware that TUSLA now relied on section 41(1), the applicant queried why TUSLA was claiming an exemption to which it had not referred in its original decision. That is a fair question. Nonetheless, as TUSLA has raised it, I must deal with it, particularly as it is a provision which restricts the applicability of the FOI Act.

Thirdly, with certain limited exceptions (e.g. sections 37(2) and 37(8), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Fourthly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicant's reasons insofar as they might be construed as a public interest argument.

Finally, in her application for review, the applicant complains about TUSLA's handling of her FOI request and points to failures to comply with statutory time-frames and to number records. FOI bodies are required to comply with the deadlines provided for in the FOI Act and I urge them to put the necessary resources in place to ensure that they are in a position to do this. I note that TUSLA did not provide an explanation for issuing decisions outside the statutory time-frames. I am glad to say that this Office is in ongoing discussions with TUSLA and other FOI bodies about improving the handling of FOI requests and quality of decision-making.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

In her request for an internal review, the applicant said: "there is content that was clearly in my [name of the institution] file and which is missing from TUSLA's response to my FOI request". In submissions to this Office, the applicant refers to a report prepared by the institution concerned in 2009. In these circumstances, it is appropriate to consider section 15(1)(a) of the FOI Act.

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found.

During the review process, the Investigator asked TUSLA questions about the steps which it had taken to search for records and the 2009 report referred to by the applicant. In response, TUSLA set out the position in some detail, which I summarise here. Records from the institution concerned were transferred to TUSLA in May 2016. They are held in electronic format on TUSLA's record management system used for adoption and older fostering records. The original paper file regarding the applicant was recalled and reviewed on 7 March 2019. On the same date, TUSLA asked the acting principal social worker of adoption services to clarify that there were no other documents. He confirmed that he had provided a hard copy of the file with the information received from the institution concerned in respect of this case. In addition, TUSLA says that cross-referencing the electronic file with the original can determine if any pages have been omitted and this cross-check was completed.

TUSLA says that there is no report in the applicant's original file from 2009 and that the only report is from 2014, which is contained in the records at Pages 135-139 and 140-144. TUSLA notes that Page 11 (which dates from 2009) refers to a report from 2009 being posted to the applicant via registered mail, but says that there is not a copy of this report on the file.

Having regard to the steps outlined above, I am satisfied that TUSLA has taken reasonable steps to search for records which it holds within the scope of the applicant's FOI request. I find that TUSLA was justified in refusing access to further records under section 15(1)(a) of the FOI Act. The FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found.

Section 41 - Enactments relating to non-disclosure of records

TUSLA claims section 41 of the FOI Act over Records 17, 20, 21, 27, 30, 43, 114, 116-118, 125-126 and 132-133. This Office conducted a separate review on foot of an entirely unrelated FOI request which also concerns records of the AAI held by TUSLA. I considered it appropriate to progress both reviews simultaneously and to obtain the AAI’s views on the operation of the Adoption Act 2010 as it relates to section 41 of the FOI Act for the purpose of dealing with both reviews. I set out and consider the AAI’s submissions below.

Freedom of Information Act 1997

It is worth noting the relevant legislative history at this juncture. Section 161 of the Adoption Act 2010 amended the Freedom of Information Act 1997 to introduce a new provision - section 46(1)(dd) - which provided that the Freedom of Information Act 1997 did not apply to:

“a record held or created under the relevant statutory provisions by the Adoption Authority or an employee of the Authority, relating to or arising from the making of an adoption order or the recognition of an intercountry adoption effected outside the State, within the meaning of the Adoption Act 2010, (other than a record concerning any other functions of the Authority...