Ms Z and TUSLA: Child and Family Agency

CourtInformation Commission
JudgeStephen Rafferty Senior Investigator
Judgment Date30 November 2021
Case OutcomeThe Senior Investigator varied the decision of TUSLA. While he found that TUSLA was justified in refusing access to the vast majority of information at issue under section 37, he directed the release of a small amount of information from two of the records. He also found that TUSLA was justified under section 15(1)(a) of the Act, in refusing access to any further records on the ground that no further relevant records exist or can be found.
RespondentTUSLA: Child and Family Agency
Record NumberOIC-112083-S6Z6C6
Whether TUSLA was justified in refusing access, under section 37(1) of the FOI Act, to certain information and records relevant to the applicant’s request for Mother and Baby Home records, and whether it was justified, under section 15(1)(a) of the Act, in refusing access to any further records on the ground that no further relevant records exist or can be found

OIC-112083-S6Z6C6

Background

The applicant was born in the early 1970s in a Mother & Baby Home. While she was placed with a family with the intention that they would adopt her, the adoption was never completed and she was returned to her mother after a few months. On 1 February 2021, she made an FOI request to TUSLA for a copy of the file containing the date her mother entered and left the named Mother & Baby Home and a copy of the adoption documentation signed by her mother. She said that all information from her mother’s chart should be made accessible to her.

In a late decision dated 14 June 2021, TUSLA decided to part-grant the request. Of the 68 records it identified as relevant to the request, five were released in full, 32 were released with some information redacted under section 37(1) of the FOI Act, and 31 were refused. Of the records that TUSLA refused to release, two were withheld under section 15(1)(d) of the FOI Act on the grounds that the records were already in the public domain, and the remaining 29 were withheld under section 37(1) of the Act (personal information of third parties).

The applicant sought an internal review of that decision on 20 June 2021, wherein she argued that many of the redactions in the records related to persons who are now deceased and that deceased persons do not have privacy rights. She stated that she was seeking a full copy of the file with no redactions. In a late internal review decision dated 11 August 2021, TUSLA varied its original decision. Some of the records that had been withheld were released either in full or with redactions, including those records refused under section 15(1)(d) which were released in full. Three records that had been released with redactions were released in full. The overall impact of the varied decision was that of the 68 records identified, 12 were released in full, 40 were released with some information redacted, and the remaining 16 records were withheld. TUSLA explained that the redactions and withheld records contained personal information relating to third parties and that it was refusing to release them in accordance with section 37(1) of the FOI Act.

On 25 August 2021, the applicant sought a review by this Office of TUSLA’s decision, wherein she stated that she was not satisfied that all records had been located and that she was seeking the release in full of the records that had been identified.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the written submissions made by TUSLA and by the applicant, to the correspondence between the parties as summarised above, and to all further communications between the parties and this Office. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In her submission to this Office, the applicant clarified that she was not seeking the release of any personal information concerning the family that had commenced the process of adopting her or information concerning other children in the Mother & Baby Home. Having carefully examined the records, this excludes records 3, 24, 26, 27, 31, 32, 34-42, 62 -65 from the scope of this review.

I note that during the course of the review, the applicant said that a witness signature was redacted from record 42, but it was not redacted in the copy TUSLA provided to this Office. TUSLA confirmed that it did not intend to redact the witness details and would forward a revised copy of the record to the applicant.

In her submission to this Office, the applicant also referred to an FOI request made in 2007 for records relating to her time in the named Mother and Baby Home following which she stated she received 35 pages of records, many of them redacted. She stated that she was distressed to discover that more records existed, referring to the 68 records identified through this current FOI request. She stated that she wished her entire file to be released and referred to additional records that she believed to be held by TUSLA. While this review is confined to the 2021 FOI request, the question of whether TUSLA identified all relevant records coming within the scope of that request arises. Section 15(1)(a) of the Act provides for the refusal of records that cannot be found or do not exist.

Accordingly, this review is concerned with (i) whether TUSLA was justified in refusing to release, in whole or in part, records 7, 22, 23, 28-30, 47, 48-49, 50, 51, 52, 53-60, and 66-68 under section 37(1) of the FOI Act, and (ii) whether it was justified, under section 15(1)(a) of the Act, in refusing access to any further records on the grounds that no further relevant records exist or can be found.

Preliminary Issues

Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, as outlined above, TUSLA’s decision on the FOI request and subsequent internal review decision were both issued outside the timeframes specified in the FOI Act. In a...

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