Legislation to seal millions of child abuse records for 75 years was drafted so “all possible provisions” of the National Archives Act, which allows the public or State bodies to access records, would be disapplied.
The Retention of Records Bill 2019 will see records from the Commission to Inquire into Child Abuse (CICA), the Residential Institutions Redress Board, and the Residential Institutions Redress Review Committee placed in the National Archives of Ireland and sealed for a minimum of 75 years, in what has been labelled “a dangerous and unnecessary precedent”.
Documents released under the Freedom of Information Act reveal that the National Archives of Ireland (NAI) advised the department, in April 2018, that there was no need for the legislation.
It said that records from the CICA are already covered by the National Archives Act, 1986, and that the latter two bodies could be brought under its remit by simply adding them to the schedule of the act.
This would mean the records would be open to inspection after 30 years, subject to some exemptions.
However, in response, Aongus Ó hAonghusa, assistant principal officer of the residential institutions redress unit, stressed that the need to seal records for 75 years was “an essential component of the whole retention project” and that to “leave open even a remote possibility of release”, under the National Archives Act, “could jeopardise the strategy, by making it potentially more vulnerable to legal challenge”.
In August, M Ó hAonghusa emailed the assistant principal at the Department of Culture, Heritage ,and the Gaeltacht, Fergal Curtin, to point out that any sections of the National Archives Act which could be used by a member of the public, or any State body, to access the records, would be disapplied with regard to the records.
“The bill is drafted in a way that all possible provisions of the 1986 act that might be used to gain access to a record, whether by this department, another State body, or a member of the public, are being proposed for disapplication,” he said.
“The director’s [of the National Archives] functions under section 4 of the 1986 act have not been disapplied in relation to the records, so the director will be the only person legally entitled to access the records.
“No physical sealing, as such, is envisaged, but presumably the NAI will have its own way of dealing with this.”
Former head of special projects at the NAI, Caitríona Crowe, has emerged as one of the most vocal critics of the proposed legislation, saying the Government’s decision to “override the 1986 National Archives Act” sets “a dangerous and unnecessary precedent”.
“The provisions of the National Archives Act have proved perfectly adequate, over more than 30 years, to protect privacy and deal with sensitive subject matter,” she said.
“There is no reasonable argument for setting them aside in the case of these particular records, which will be extraordinary sources for scholars in the years ahead.
“The department’s action opens the gate for future restricted access to any records the State may not wish citizens to see.”