Ms X and TUSLA

• Judge: Elizabeth Dolan, Senior Investigator
• Judgment Date: 24 July 2015
• Case Outcome: The Senior Investigator affirmed the decision of TUSLA in relation to most of the records to which access was refused under section 28 of the Act; she also affirmed TUSLA's decision that section 22(1)(b) applied to records relating to proceedings under the Child Care Act and found that this exemption also applied to several additional records; she also varied the decision of TUSLA in relation to certain parts of records which it had agreed to release and directed the release of those parts which were not found to be exempt under section 28.
• Court: Information Commission
• Record Number: 140308
• Respondent: Tusla

Whether TUSLA was justified in refusing access to certain records concerning the applicant and her family under the provisions of sections 22(1)(b), 28(1) and 28(5B) 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 25 August 2014 the applicant made a 10-point FOI request to the HSE West for all information relating to herself and her family. The HSE identified five separate agencies who held records associated with the request, one of whom was TUSLA - the Child and Family Agency. In its original decision of 9 October 2014, TUSLA informed the applicant that it was part granting her request. The applicant sought an internal review on 14 October but did not receive a decision from TUSLA within the 15 working day timeframe provided for at section 14(4) of the FOI Act. On 11 November 2014, the applicant applied to this Office for a review of the decisions of all the agencies originally identified by the HSE, including TUSLA. On 17 November 2014, TUSLA responded to the applicant's internal review request and upheld its original decision.
Following communications with this Office, the applicant narrowed the scope of her application for review to the Commissioner so that it was confined to the decision made by TUSLA only. In this regard, the applicant confirmed that the main issue she wanted this Office to review was the decision of TUSLA on point 6 of her original 10-point request to the HSE West i.e. her request for all information relating to herself and her family.
I consider it appropriate to bring this review to a close by way of a formal binding decision.
In conducting this review, I have had regard to correspondence to and from the applicant, TUSLA and this Office, and between this Office and An Garda Síochána. I have also had regard 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

This review is concerned solely with the question of whether TUSLA was justified in its decision to part grant or refuse access to the records on the basis that sections 22(1)(b), 28(1) and/or 28(5B) of the FOI Act apply. During the course of this review, TUSLA revised its position and agreed to release the names of the applicant's children as they appear in certain records together with names of public servants, members of An Garda Síochána, teachers, social workers and medical personnel that it had previously withheld. As I understand it, those parts of the records have not yet been released; therefore, I will deal with them in this review.

Preliminary Matters

The release of a record under the FOI Act is considered, effectively, as release to the world at large. However, whereas I am required by section 34(1) to give reasons for my decision, 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 limited.
In her original application to this Office, the applicant noted that she had not received timely responses from all of the relevant agencies. She also queried whether certain records (files) were missing, although this was in relation to other agencies covered by her original request. She noted that the records provided to her by those agencies were not released in a form which corresponded to the details in the accompanying schedules. In carrying out a review, the Commissioner is primarily concerned with whether the Act entitles members of the public to have access to records held by a public body. The Act does not provide for a right of access to records which ought to exist. Therefore, the Commissioner does not have the authority to require a public body to create or acquire records where such records do not exist or are not held by it. It is also outside the remit of the Commissioner to adjudicate on how public bodies perform their functions generally. I note however that TUSLA contacted and met with the applicant several times to explain the position about the records and deal with her queries.

TUSLA identified seven files associated with the applicant's original FOI request, with a total number of records in excess of 1,100. A certain amount of information in the files is duplicated and consequently, the same or similar information is included in more than one record and in one or more file. Given the nature and content of the records which comprise an entire social work file, I have decided that it is appropriate for the purposes of this decision to deal with them as groups of records (by file number) where appropriate, rather than on a record by record basis. During the course of this review, An Garda Síochána provided a submission concerning a number of records. In its submission, An Garda Síochána argued, as TUSLA did, that personal information of individuals other than the applicant was exempt on the basis of section 28(1) and section 28(5B).
Section 13
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record, nor the provisions of section 13, 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.

Analysis and Findings

Section 22(1)(b)
TUSLA cited this exemption in respect of a number of records, namely: file 4 - records 69-86; file 5 - records 26-43 and 75-81; file 6 - records 14-37 and file 7 - records 1-33 and 43-48. I note that it is a mandatory exemption i.e. that it does not allow the exercise of discretion on the part of the decision maker.

Section 22(1)(b) of the FOI Act (as amended) provides that:-
A head shall refuse to grant a request under section 7 if the record concerned -
"...(b) is such that the head knows or ought reasonably to have known that its disclosure...