Ms X and the Child and Family Agency

CourtInformation Commission
JudgeElizabeth Dolan Senior Investigator
Judgment Date26 June 2015
Case OutcomeThe 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 Number140282
RespondentThe 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...

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