Ms X and TUSLA: Child and Family Agency

CourtInformation Commission
JudgeSenior Investigator
Judgment Date01 December 2021
Case OutcomeThe Senior Investigator varied the decision of TUSLA. He affirmed TUSLA's decision in relation to most of the records at issue. He annulled TUSLA's decision in relation to certain records, or parts thereof, as outlined in his decision and directed the release of the information contained in those records, subject to the redaction of any third party personal information contained in those records.
Record NumberOIC-96494-X1G6C4
RespondentTUSLA: Child and Family Agency
Whether TUSLA was justified in refusing to grant access to records relating to the applicant, under section 37 of the FOI Act on the basis that the records contain personal information of third parties, under section 31(1)(a) on the ground that the records contain legal advice, and under section 31(1)(b) on the ground that release of the records would constitute contempt of court

OIC-96494-X1G6C4

Background

The applicant and her husband have been foster carers since the early 1980’s. In a request dated 10 February 2020, she sought access to records held by TUSLA relating to her for the period 1 January 1983 to 1 January 2020. Her request was accompanied by a letter from her husband in which he consented to the applicant to request a copy of any and all personal information held.

TUSLA identified 11 large files comprising over 3,000 pages of records as coming within the scope of the applicant’s request. In a decision dated 10 June 2020, TUSLA part-granted the applicant’s request. It refused access to certain information contained in the records under sections 37(1) (third party personal information), 31(1)(a) (legal professional privilege), and 31(1)(b) (contempt of court) of the FOI Act. The applicant sought an internal review of that decision, following which TUSLA affirmed its original decision. On 4 September 2020, the applicant sought a review by this Office of TUSLA’s decision.

I have now completed my review of TUSLA’s decision. I have decided to bring the case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and TUSLA as outlined above and to communications between this Office and both the applicant and TUSLA on the matter. I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by TUSLA in the schedule of records it prepared when processing the request.

Scope of this Review

This review is concerned solely with whether TUSLA was justified in refusing access to certain records, in whole or in part as set out in the schedule accompanying its decision, under sections 31(1)(a), 37(1), and 31(1)(b) of the Act.

The applicant’s request was for records for the period 1 January 1983 to 1 January 2020. As pages 124-135, 332-345 and pages 393-397 in File 2 post-date the applicant’s request, I have not considered these records.

Preliminary Matters

Before I address the substantive issues arising, I would like to make some preliminary points.

First, I wish to address a comment the applicant made in her application for review to this Office. She said she is engaged in ongoing court proceedings with TUSLA. She alleged that her complete personal files have been given to her solicitor under disclosure requirements and that if she was to represent herself she would be entitled to her complete files under the same disclosure requirement. While I can make no comment on the applicant’s entitlement to access her files through discovery, I would note that documents disclosed on discovery in the context of court proceedings are subject to an implied undertaking given to the court and to the other party, by the party to whom the documents are produced, that the documents disclosed shall not be used otherwise than within and for the purpose of the action in which they were disclosed. On the other hand, the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no such constraints on the uses to which the information contained in those records may be put. In the circumstances, I can have no regard to what records, if any, the applicant may be entitled to access through discovery when considering whether TUSLA was justified in refusing access to certain records on foot of the FOI request.

Secondly, section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an...

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