Ms X and TUSLA: Child and Family Agency

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 23 August 2021
• Case Outcome: The Senior Investigator affirmed TUSLA's decision, under sections 31(1)(a) and 37 of the FOI Act.
• Court: Information Commission
• Respondent: TUSLA: Child and Family Agency
• Record Number: OIC-106767-W5J0S6

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

23 August 2021

Background

On 23 November 2020, the applicant made an FOI request to TUSLA for all records relating to herself and her children. On 1 March 2021, TUSLA decided to grant access to some records and refuse access to the remaining records on the ground that they were exempt under sections 31(1)(a) and 37 of the FOI Act. On 14 March 2021, the applicant applied for an internal review. She said that she requested all information on file relating to her and her children, including all details surrounding a visit by TUSLA to her home on a specified date. On 1 April 2021, TUSLA issued its internal review decision, in which it affirmed its original decision. On 26 April 2021, 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 the applicant and TUSLA as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by TUSLA for the purposes of this review.

Scope of the Review

The scope of this review is confined to whether TUSLA was justified in refusing access to the records under sections 31(1)(a) and 37 of the FOI Act. TUSLA identified three files of records, numbered from 1-76, 1-339 and 1-525. During the review, TUSLA issued a revised schedule.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, and 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. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, 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. I should also note that this Office has no role in how TUSLA performs its functions generally.

Secondly, with certain limited exceptions (e.g. section 37(2), 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.

Finally, 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 31(1)(a) – Legal Professional Privilege

TUSLA claims that certain records are exempt under section 31(1)(a) of the FOI Act. Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The Commissioner has considered records that may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications, which was for the purpose of giving or receiving legal advice. In Case 020281 the former Commissioner referred to the following comments by Mr. Adrian Keane in "The...