Simon McGarr: It's time to tell the truth – give survivors their data

Children Roderic O’Gorman's claim that sealing the testimonies of mother and baby home survivors was a data protection issue was wrong and illegal
Simon McGarr: It's time to tell the truth – give survivors their data

Children's Minister Roderic O'Gorman provoked a fire storm of upset when he announced last October he would seal the mother and baby home records for 30 years. Picture: Julien Behal Photography 

Last October, the Minister for Children Roderic O’Gorman announced his plan to have the Mother and Baby Homes Commission of Inquiry transfer its invaluable archive of documents and testimony to him. 

He would take possession of them, but then claimed he had to seal the records for 30 years.

The firestorm of upset this provoked showed how out of step the minister and his department were with the public’s wishes. 

From petitions to direct contact from voters, the public showed they were no longer willing to let survivors to be told ‘no’.

But that’s not all it showed. The insistence on this callous impulse to secrecy also revealed the minister and his department had no idea what was or wasn’t legal when it came to blocking people from accessing their personal data.

The minister insisted throughout the heated Dáil debates on his bill that the Attorney General’s advice told him that the domestic legislation setting up the Commission of Inquiry "prohibited" GDPR – the landmark EU data protection law which came into force in 2018 and underpins people’s right to access their data.

Picture: James Ward/PA Wire
Picture: James Ward/PA Wire

Minister O’Gorman held that position all the way into the Cabinet meeting of October 28, in the teeth of counter-argument by every EU law expert in the State. 

The memo he brought to Cabinet even asserted that same Attorney General’s advice. He only finally abandoned this position when the Attorney General, who was sitting at the Cabinet table, said that wasn’t his advice. 

The AG later confirmed that GDPR (of course) did apply and that people should be given access to their records subject to a balancing test against the rights of all the others involved.

The 30-year seal idea wasn’t legal. It had always been illegal. The notion came about because the State has repeatedly tried to pretend that its own domestic legislation can somehow let it re-write the parts of GDPR it finds uncomfortable. 

It can’t. And it’s illegal for any state body to try to apply any piece of domestic legislation that clashes with EU law. The Court of Justice of the European Union (CJEU), the EU’s top court, confirmed that again recently when the Department of Justice tried to deny it.

And yet, just last Friday, the minister advertised for data protection experts to help draft the rules his department would use when mother and baby home survivors sent in their GDPR data access requests.

And there, once again, in the document was a requirement that the applicants acknowledge the same old fantasy of domestic restrictions on releasing data: 

The particular legal regime applying to a commission of investigation requires consideration whether the release of personal data may prejudice the effective operation of commissions and the future cooperation of witnesses.” 

To be clear – this restriction is invalid under GDPR.

At the same time as the minister looks to hire consultants to argue the impermissible for him, the Act he passed back in October has one last breach of data rights still to go.

Section 6 of the Act instructs the commission to contact witnesses and invite them to have their names redacted from the archive. Because he was denying GDPR applied while he passed the law, the minister made no requirement for a balancing test to take account of the rights of third parties.

And, even though the Attorney General has now accepted the need for a balancing test when the data is transferred to the minister, the commission seems intent on preferring the unlawful domestic law over GDPR’s requirements.

It has written out to witnesses saying it will redact both their name and "other identifying information to be included in the records that we hand over to the department. It is important to understand that this refers only to the file on your meeting with the Confidential Committee.” 

The Commission doesn’t say what is included in those files and doesn’t offer to provide the witnesses with the opportunity to read them for themselves, or to choose between redactions in different documents.

It would be a cruel trick if public outcry finally forced the minister to accept the validity of survivors’ data rights to access their personal data, but that when they sought that data it was refused on the grounds it was already deleted before it reached him, thanks to this section of his controversial law.

GDPR is a dry piece of EU legislation. But, as this issue has shown, there can be few things more vital for a person’s ability to be the author of their own lives than to know just who they are. 

Empowering people to be that author is the primary aim of these rights, and it is precisely because they underpin such a profound personal issues that Data Protection was added to the Charter of Fundamental Rights. That charter stands above both Irish domestic legislation and any conflicting provisions of our Constitution.

People have a right to know who they are and where they came from. Those rights can be balanced against others if needs be. But they must be recognised first.

We have seen the decades-long pain caused by the State’s denials of that right. 

If the minister and the Government are sincere in their promises of a survivor-centred response to the mother and baby homes scandal, they need to act now to prevent their past and present denials of those GDPR rights from haunting the lives of survivors irrevocably.

It’s time to tell the truth.

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