The Government has contravened European and Irish law with regard to the accessibility of personal data by voting to seal the records of mother and baby homes for thirty years.
The Data Protection Commission was consulted by the Department of Children ahead of the drafting of the new mother and baby homes bill regarding the Data Protection Impact Assessment it had commissioned concerning the legislation.
In passing the legislation on Thursday evening, Children’s Minister Roderic O’Gorman said that his advice from the Attorney General was that access to the records had been explicitly restricted by the Commissions of Investigation Act 2004.
However the Irish Examiner can reveal that this is entirely contrary to the observations provided to the Department by the DPC.
Apart from a database which is being sent to the child and family agency, Tusla, the records will be sealed for the next three decades.
“The DPC provided a number of observations on the DPIA,” deputy commissioner Graham Doyle said regarding the issue.
He said that the 2018 Data Protection Act, itself drafted in order to enact the EU’s powerful General Data Protection Regulation (GDPR) within Irish law, “explicitly amended” the 2004 Commissions of Investigation Act so that “any restriction on the right to access personal data processed by the Commission can only be implemented ‘to the extent necessary and proportionate to safeguard the effective operation of commissions and the future cooperation of witnesses’”.
“It would appear to the DPC to be the case that the separate provisions of the 2004 Act in relation to the sealing of documents were not intended in the context of the amendment to the 2018 Act to provide an effective ‘blanket’ barrier to the exercise of rights,” Mr Doyle said.
The deputy commissioner added that it is “necessary” for the Department to demonstrate “why in all the circumstances of this Commission it would be necessary to restrict rights of access” and how, in sealing the records, it can safeguard the rights of citizens to access their own information, particularly where the necessity and proportionality of that act - key measurements under GDPR - had not been defined.
It’s understood that the DPC fundamentally disagrees with the Department’s approach with the new legislation.
“The Minister admits that he went back and forth with the Attorney General and that the 2004 Commissions act requires that the records be sealed,” a source with knowledge of the matter said.
“But that act came in 2004 - it predates the EU’s charter on fundamental rights and GDPR and the 2018 data protection act, and where there’s conflict between national and EU legislation, the EU takes primacy,” they said.
“He (Minister O’Gorman) has gotten advice which he feels he has to follow, but he also clearly realises that there’s something wrong,” the source said.
“To be fair to the Department they’re trying to do the right thing, but are afflicted by having done such a bad job on communications. They have to legislate to ensure that the Commission doesn’t redact the information within the records. Really, the question is how the whole thing was left so late.” Social Democrats TD Holly Cairns, who had faced off against Minister O’Gorman during the Dail debate on the Bill and described his refusal to accept opposition amendments as “sickening”, said she was “unsurprised” by the DPC’s stance.
Opposition TDs had hoped to allow survivors of the system decide via those amendments whether their names and testimony should be disclosed.
“Legal experts in the area and human rights lawyers warned the Minister this was the case I and a number of others raised it in the Dáil,” Ms Cairns said.
“We pleaded with the Minister not to rush the passing of the Bill so issues like this could have been identified. However, he and the government parties insisted they knew best. Now it is clear he has even more questions to answer,” she added.
The Commission on mother and baby homes will dissolve at the end of October, which has precipitated the need to pass legislation within the Oireachtas regarding the records.
The issue is likely to continue to gain traction over the weekend, with a protest organised by dissenting Senator Ruth Coppinger scheduled to be held in Dublin on Saturday afternoon.
Meanwhile, at the time of writing, Aitheantas, the adoptees’ rights group, had amassed over 10,000 signatures in a matter of hours on a petition calling for the records to be unsealed.
Earlier, Minister O’Gorman said he "deeply regrets" his failure to properly communicate with the survivors of Mother and Baby homes on the new laws which will seal their records for 30 years.
He admitted that the controversial Bill, which was voted through the Dail by the three Government parties on Thursday evening, has caused "anxiety".
Mr O'Gorman said he will now consult with survivor groups and academic experts after the Bill sparked fury among opposition TDs and former mother and baby home residents.
"I needed to do a better job at communicating what the government was doing and engaging with survivors groups, and I know a lot of anxiety has been caused and I certainly deeply regret the fact that my failures to communicate properly caused that anxiety," he said.
“I should have done better in how I communicated what I was trying to achieve with this particular piece of legislation.” The Government had argued that the legislation was needed to protect the information which had been gathered by the Mother and Baby Commission over the past five years.
Mr O'Gorman said he will now consult with the Attorney General to see "what avenues there are to address the 30 year issue, particularly with regard to personal information".
He said he will also work with the Oireachtas Children's Committee on the issue adding that he is "committed to addressing" the concerns around the 30 year rule.