Ms X and the Child and Family Agency

• Court: Information Commission
• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 26 June 2015
• Case Outcome: The Senior Investigator varied TUSLA?s decision. She affirmed its decision that section 28(1) and/or 28(5B) applies to all of the records withheld in full or in part with one exception. The Senior Investigator found that the redaction from the records of the names of Gardaí and teachers was not in accordance with sections 28 or 26 of the Act and she directed that such information should be released to the applicant
• Record Number: 140282
• Respondent: The Child and Family Agency (TUSLA)

Whether TUSLA was justified in its decision to refuse access to records concerning the applicant's two daughters under sections 28 and 26 of the FOI Act

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

Background

On 3 June 2014 the applicant made an FOI request to TUSLA for all social work documentation held in relation to herself and her two daughters "C" and "S". It is important to note at the outset that the Children and Family Services functions of the HSE were transferred to TUSLA on 1 January 2014. For the purposes of this review all references to TUSLA should be read as the HSE where appropriate. In its decision of 1 July 2014, TUSLA informed the applicant that it was granting her request in part. The applicant sought an internal review of TUSLA's decision and on 15 October 2014 the original decision was upheld by TUSLA. On 20 October 2014 the applicant applied to this Office for a review of this decision. Both the applicant and TUSLA made submissions in support of their positions. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.

In conducting this review I have had regard to correspondence between the applicant and TUSLA, to correspondence between TUSLA and this Office, to correspondence between the applicant and this Office, and to the contents of the records at issue.

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 to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

TUSLA said that the only information it holds relating to the applicant is contained in her daughters' files. The applicant's daughter "C" consented to the release of her social work records to the applicant. TUSLA released in part a file containing 58 pages of records in relation to "C". TUSLA granted partial access to the records contained at pages 1-10, 13-48 and 50-58; it refused access to the records contained at pages 11-12, and 49. TUSLA claimed section 28(1) and or 28(5B) applied to all of the records partially released or withheld. TUSLA also claimed that the records at page numbers 11-12, 21-32 and 49 were also covered by section 26 of the Act.

TUSLA released in part a file containing 51 pages of records in relation to the applicant's daughter "S". TUSLA granted partial access to the records contained at pages 1-19, 22-24 and 30-51; it refused access to the records contained at pages 20, 21 and 25 to 29. TUSLA claimed section 28(1) and or 28(5B) applied to all of the records partially released or withheld. TUSLA also claimed that the records at page numbers 21, 23, 25-29 and 31-44 were covered by section 26 of the Act. This review is concerned with the question of whether TUSLA was justified in its decision to refuse in full or in part access to the records outlined above on the basis that sections 28(1), 28(5B) and/or 26(1)(a) of the FOI Act applied to these records.

Preliminary Matters
The release of a record under FOI Act is considered, effectively, as release to the world at large. I am required by section 34(1) to give reasons for my decision; however, this is subject to the requirement of section 43(3) 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 records at issue and the circumstances of their creation is somewhat limited. Another matter 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).

Analysis and Findings

Applicant's Submissions
The applicant pointed out in her submissions that she is the primary care giver to "C" and "S". The applicant submitted that on the basis of a review of the files provided to her, she was very concerned that information had been furnished to TUSLA which was misleading. The applicant also expressed her concern that information about her may have been provided maliciously. The applicant stated that she required the records so that she could pass them on to her solicitor.

TUSLA's Submissions
TUSLA submitted that the records partially withheld or withheld in full contain personal information of persons other than the applicant, or personal information about the applicant that is inextricably linked to the personal information of other persons. TUSLA submitted that these records are therefore exempt under section 28(1) and or section 28(5B) of the FOI Act. TUSLA also stated that certain records, as identified above, are exempt under section 26(1)(a) of the FOI Act in that that these records relate to information given to an employee of TUSLA in confidence and on the understanding that it would be treated as confidential. TUSLA said that in considering whether sections 28 and 26 should be applied to the records concerned, it carefully considered the public interest factors in favour of release and the factors against release and it decided that the public interest in favour of withholding/partially withholding the records outweighed the public interest that would be served by their release.

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