Ms Y and Tusla

• Jurisdiction: Ireland
• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 22 October 2021
• Case Outcome: The Senior Investigator affirmed the decision of TUSLA.
• Court: Information Commission
• Respondent: Tusla
• Record Number: OIC-111522-J2H1L9

Whether TUSLA was justified in refusing access, under section 37 of the FOI Act, to a copy of a referral that was sent to TUSLA about the applicant and her children

22 October 2021

Background

In an FOI request to TUSLA dated 21 January 2021, the applicant sought access to a copy of a referral that was sent to TUSLA about her and her children. TUSLA refused the request under section 37 of the FOI Act. The applicant sought an internal review of that decision on 12 May 2021, following which TUSLA affirmed its refusal of the request. On 11 August 2021, the applicant applied to this Office for a review of TUSLA’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude the review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between TUSLA and the applicant and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the record at issue.

Scope of the review

The scope of this review is confined to whether TUSLA was justified in its decision to refuse access, under section 37 of the FOI Act, to the referral letter sent to TUSLA relating to the applicant and her children.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, subject to the other provisions of the FOI Act, section 13(4) requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the record at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.

Second, although I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in 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 record at issue and its content is severely limited.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

Section 37(1)

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition, to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or...