Tusla assesses the potential “harm” that could be caused to birth families before it decides on whether or not to release personal information to adopted people about their early lives.
The claim is contained in the unpublished report of the Collaborative Forum on Mother and Baby Homes — a copy of which has been obtained by the Irish Examiner.
Children’s Minister Katherine Zappone set up the forum in 2018 and received its report of almost 90 pages last December. However, in April she controversially declined to publish the full report citing the advice of the Attorney General — instead only releasing its recommendations.
In a lengthy section on information and identity rights, the report states that Tusla representatives informed it that it assesses the likelihood of harm being caused to wider birth families by the release of personal information to an applicant.
“In exchanges with the forum, Tusla representatives indicated that identity and personal information applications are assessed in part by reference to the level of harm acceding to such requests may cause,” states the report. “Neither the statutory basis for such a criterion, nor the nature of how harm is determined, was clear to forum members.”
The forum states its belief that since Tusla began taking ownership of the files of former adoption agencies in 2014, it has been pursuing “a practice of withholding identity and personal information from applicants detained as children across various institutions on the basis that to release this information, could cause harm to the wider family members of the applicant”.
In a statement, Tusla said that in the absence of any specific legislation to regulate information and tracing services, it can only “lawfully release information relating to other persons [e.g. birth parents] with their expressed consent.”
It also said that in a case where a person (birth parent) is deceased, GDPR legislation requires that the controller of the records (information) also considers that the sharing of information “should not adversely affect the rights and freedoms of others”.
“In order to respond to requests for information in these instances, Tusla uses a risk-based process to assess who may be impacted by the disclosure of information in a process that is treated with great sensitivity, balancing the rights of all parties involved,” said a statement.
However, a specialist in information law, Fred Logue of FP Logue, said Tusla is “incorrect” about requiring consent for release of information that relates to the adopted person and someone else.
“The law says that the adopted person has a fundamental right of access to this information and this is not affected by the fact that their personal data also relates to someone else,” he said.
“In that case, access can only be refused if there is an adverse effect on the rights or freedoms of that person. While obviously someone can consent to the release of their personal data, the absence of that consent does not negate the right of access.
The same goes for release of information about deceased family members although I have never once seen what the theory of harm is in these cases
Earlier this year, members of the Collaborative Forum on Mother and Baby Homes expressed their disappointment at the Government’s refusal to publish its full report.
The forum - which is comprised of former residents of the institutions and advocates and is separate from the Mother and Baby Homes Commission - began its work in July of last year and presented a report of almost 90 pages to children’s minister Katherine Zappone in December 2018.However, Ms Zappone only published the recommendations of the forum - citing legal advice from the Attorney General.