THE COMMISSION OF Investigation (Mother and Baby Homes and Certain Related Matters) Records Bill will be debated in the Dáil this evening after 5pm.
Published just two weeks ago without any pre-legislative scrutiny or consultation, and approved by the Seanad last week, the Bill’s original key provisions were:
Since the Seanad debates last week, the Government has now introduced amendments to the Bill:
The first of these amendments is welcome.
Regarding the second amendment: the Commission or Government should give those affected by the abuses under investigation a choice as to whether they wish to be identified in their transcript of evidence in the Commission’s archive.
However, this amendment is not the way to achieve this.
The Commission and the Government should be applying the framework of the EU General Data Protection Regulation (GDPR), which gives individuals many rights in respect of their personal data, including the right to be informed, the right of access, the right to rectification, the right to erasure, and the right to object to data processing.
It makes no sense to single out one of these rights and to leave out the rest including the immediate right of subject access to personal data held by the Commission.
What should be done instead
Along with my colleagues in the research group ‘Justice for Magdalenes Research’, I have suggested and continue to advocate for the following amendments to the Bill:
Over the past week, the Government has made various arguments in defence of the Bill and in defence of its clearly stated policy that the Minister will ‘seal for 30 years’ the entire archive of the Commission of Investigation once he receives it.
Here, I respond to the most prominent of those arguments.
Government argument 1: As part of its work, the Commission created a database of every person to have passed through the main Mother and Baby Homes. The legislation needs to pass by 30 October or the database will be destroyed. We cannot allow this important information to be lost, which is why we are doing this urgently.
I do not know exactly why the Commission feels that it will have to destroy the database of mothers and children that it created from the records it received if this legislation is not passed by 30 October – this has not been explained.
From what I can tell: the Commission has self-imposed a deadline of 30 October to give its final report to the Minister, and the existing legislation – the Commissions of Investigation Act 2004 – states that upon delivery of the final report, the Commission is dissolved. This means that the archive has to be sent to the Minister along with the final report (under Section 43 of the 2004 Act).
The Commission appears to believe that it cannot deliver personal data to the Minister, despite Section 43 of the 2004 Act explicitly stating that every Commission of Investigation has to give every document or piece of evidence gathered or created by it to the relevant Minister upon concluding its work.
The GDPR came in in 2018 but it poses no barrier to the transfer of this data to the Minister; archiving in the public interest is a legitimate ground of data processing under the GDPR. Furthermore, for the Commission to destroy personal data would be a highly questionable form of data processing because it has no legislative basis to do so.
Nonetheless, giving the Commission clarity as to the fact that it can and must send all of its archive unredacted to the Minister is not a problem in principle.
I do not understand why this has to be done by 30 October save that this is the Commission’s self-imposed deadline for delivery of its report.
Yes, many people will be upset if the Commission delays delivery of its final report. But many people are extremely upset that they have had no access to their personal data from the Commission to date, or to any of the records it gathered from the State and elsewhere – this legislation does not do much to change that situation.
Government argument 2: This legislation is not about sealing the archive. The Commission was established under the Commissions of Investigation Act 2004, which requires that evidence is private and sealed for 30 years.
The public disquiet about ‘sealing’ is coming from the repeated ministerial and departmental briefings on the Bill and the Minister’s statements in the Seanad, rather than directly from the Bill’s provisions.
Because the Minister keeps stating that he will ‘seal for 30 years’ everything he receives from the Commission, the public are campaigning for the Minister to amend this Bill to say that he will not do so.
I explain here why the Minister is legally incorrect to claim that the entire archive he receives from the Commission (1) will be sealed and (2) has to be sealed.
First, neither the Commission nor the Government is permitted under the GDPR to place a blanket seal over the entire archive it holds. Under Article 23 GDPR, restrictions can only be placed on data subject rights (including the fundamental right of access to personal data) to the extent necessary and proportionate in a democratic society to achieve a legitimate aim, and only in a way that still respects the essence of the right.
Data protection law expert and solicitor, Simon McGarr, explains this in more detail here and the Irish Women Lawyers Association issued a similar statement yesterday.
Section 198 of the Data Protection Act 2018 amended section 39 of the Commissions of Investigation Act 2004 to place a restriction on the right of subject access to personal data in the archives of Commissions of Investigation only to the extent necessary and proportionate to safeguard the effective operation of commissions and the future cooperation of witnesses.
The Government has not explained why denying individuals who were subjected to forced family separation access to their own transcripts of evidence and personal and family records is a necessary and proportionate measure to safeguard the effective operation of this or any Commission or the future cooperation of witnesses.
Surely, such a blanket denial of access to personal data does the opposite: it undermines the purpose of this Commission, which was to respond to complaints of unlawful interference with private and family life, denial of personal and family identity, and denial of information about loved ones who are disappeared or deceased.
Barring access to one’s transcript of evidence is unlikely to encourage future cooperation of witnesses, particularly where they must recount traumatic or deeply personal events and without a transcript will have to repeat them again in future.
For the above reasons I believe the Commission was wrong to reject all requests for access to personal data on a blanket basis, as it did for example here. We cannot have a situation where the Minister gives out similar letters for the next 30 years when a person seeks their transcript of evidence or personal or family records from his archive.
Second, the Commissions of Investigation Act 2004 does not require Commissions to proceed entirely in private.
It gives discretion under section 11(1) to every Commission to hold public hearings—something which this Commission refused to do (it even refused Philomena Lee a public hearing). The 2004 Act also states in Section 12 that a Commission shall disclose to every person who gives evidence to it ‘the substance of any evidence in its possession that, in its opinion, the person should be aware of for the purposes of the evidence that person may give to the commission.’ The only exception under section 12 to this requirement is that the source of the evidence to be disclosed to a witness may be withheld if given in private unless disclosure of the source is in the interests of the investigation or fair procedures.
There is a further catch-all provision in Section 11(3)(c) which allows a Commission to disclose to any person any evidence or document gathered where the Commission deems it necessary in the interests of fair procedures.
In fact, the Commission could still now, while it is in existence, provide subject access under section 11(3)(c) or 12 to all personal data (including witness transcripts) that it holds. Furthermore, as argued above, under EU law it must implement GDPR rights.
Third, even if the 2004 Act did require ‘sealing’ of evidence (and setting aside the fact that EU law is supreme over any conflicting Irish legislation) the Oireachtas can—of course—change the application of the 2004 Act to this particular Commission’s archive, as this Bill already proposes in various respects.
Government argument 3: People gave evidence under assurances that the archive would be sealed in line with the 2004 Act. In order to provide truth to the fullest extent possible, we have to provide confidentiality to vulnerable people who otherwise may not provide testimony.
Nobody has asked for the testimony of vulnerable people to be revealed to the public. My advocacy and others’ has focused on ensuring that the Minister:
My colleagues in Justice for Magdalenes Research and I have asked that this Bill be amended to (1) clarify that the GDPR does in fact apply to the Minister’s archive once he receives it and that he will respond to data subject requests; (2) ensure the release to the National Archives of State records (‘Departmental records’ as defined by Section 2 of the National Archives Act 1986) that are already 30 years old; and (3) ensure the production of the comprehensive Finding Aid(s) to the Minister’s archive so that, shortly, legislation can provide for further release of administrative records in the archive, including those that came from non-State sources.
Government argument 4: We fully understand the concerns people have on this bill, but would hope that they understand that without it, the records could be destroyed. That’s why we need to act.
Again, I do not know why it was necessary to give the Commission this extra assurance but that is the position we are in now.
In discussing this Bill the Minister has repeatedly stated that his archive will be sealed for 30 years, therefore many people want the Government to take this opportunity in the Bill to clarify that it will not and that (1) data subject rights will be implemented, (2) state files will not be sealed for 30 years, and (3) a consultation will begin soon with the benefit of the Finding Aid(s) to the archive about further release of administrative records that came from non-state, as well as State, sources.
The Government has known since the Commission was established that survivors’ and adopted people’s access to their own personal data and to the administrative records that lie behind the Commission’s report would need to be addressed; therefore this issue should and could have been addressed before now.
It is not acceptable to railroad people into accepting ‘sealing’ for 30 years when clearly this Bill shows (by sending some of the archive to Tusla) that the Oireachtas can legislate to make it otherwise.
Furthermore, the Commission’s denial of GDPR rights for the past two years does not mean that further denial of them by Government is justified: it means that rectifying the situation is all the more urgent.
Government argument 5: Legitimate concerns exist that former residents should be afforded agency and choice over how their own stories, their own lived experiences, are treated. On one hand, many former residents who provided their story believed that they would remain fully anonymous and their name would never remain in any record, even one that would be sealed for 30 years. Equally, others who told their stories would wish their names to remain attached to the story for posterity. Consequently, Minister O’Gorman is bringing forward an amendment to address both viewpoints in this important debate and, in so, doing respect each person’s agency and right to decide in respect of their story.
This should be dealt with (and can be addressed by the Minister when he receives the archive) in accordance with the GDPR which provides a plethora of rights giving a person control over how their personal data is used.
The Government amendment does not offer anyone access to their personal data now. It offers them a choice whether or not to be identified in 30 years’ time.
Therefore, the amendment does not respect agency since many people want and have a right to personal data access (personal and family records, and transcripts of testimony) immediately.
The Minister’s amendment does not require the Commission to give people a transcript of their testimony when they write to them to ask if they would like it to be redacted.
The Commission has refused to do so to date. If the Government expects the Commission to change its practice, then this makes the point that everyone should have access to all of their personal data that the Commission is currently holding – and that this can be legislated for now, in this Bill.
Government argument 6: The Commission’s report will be an extremely detailed account of the Mother and Baby Homes, comprising around 4,000 pages. It will also include an 80 page index of source materials used.
The Commission should not have a monopoly on writing history. Survivors and the general public—given the systematic and serious human rights violations at stake—have the right to access the administrative records which show how the system was run. (These can be anonymised as necessary to protect individuals in their private capacity.)
The Clann Project Report (in Section 4) discusses in detail the State’s human rights law obligations to ensure access to archives relating to systematic human rights violations.
Just this month the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence published a report to the UN General Assembly that addresses access to archives as a crucial enabler of memorialisation and transition.
The Special Rapporteur’s report notes:
“[The] desire to hide is not new… many Governments have tried to eradicate the traces of their crimes. The Special Rapporteur considers the protection of archives to be essential for enabling societies to learn the truth and regain ownership of their history.”
The Special Rapporteur describes as ‘exemplary’ the ‘attitude of the German authorities, who have opened the archives of the Stasi (the Ministry of State Security of the former German Democratic Republic)’.
Last December, the spokesperson for the Stasi Records Agency, Dagmar Hovestadt, visited Ireland and spoke publicly about what Ireland could learn from this approach.
Government argument 7: Adoption Information and Tracing will be addressed by a much broader piece of legislation which the Minister will be bringing forward in the near future.
The Commission and Minister still cannot avoid EU law, which requires them to implement GDPR rights in relation to the archives they hold. It is also important to note that the Commission of Investigation has gathered personal data that goes beyond adoption files.
Government argument 8: The Commission does not possess the original documents. No original records will be sealed by these arrangements. State records remain in the possession of the relevant statutory body and appropriate access is regulated in accordance with relevant statute.
Why should people affected by systematic and serious abuse have to do the Commission’s job all over again?
The Commission gathered innumerable records that are not ordinarily available to the public from either State or non-State sources. Even Departmental records that should, in theory, be available in the National Archives of Ireland (NAI) generally are not.
As a Fórsa report recently demonstrated, the NAI is grossly underfunded and is only in a position to work effectively with four government departments. Over one third of the NAI’s limited collection has not even been cataloged for public access yet.
Government argument 9: We do not need to legislate to publish an index of an archive to allow debate on what should be published in due course because the Commission has informed the Minister that the final report will include a complete listing of all the sources which were used in completing its report. This listing is over 80 pages in length.
It is not clear that the Commission’s 80-page bibliography will indeed be a fully comprehensive listing of the Commission’s entire archive.
Instead, the Bill should require the Minister or Commission to produce the Finding Aids that the Commission’s archivists have used for the past five years to navigate the archive (these can be anonymised as necessary to protect individuals in their private capacity.
The Commission’s final report may not draw on all sources in the archive.
Furthermore, if we take the Commission’s Fifth Interim Report as an example, there are discrepancies in the level of detail provided in the Commission’s footnotes. For example, footnote 50 in the Fifth Interim Report provides as one reference: ‘Child and Family Agency (Tusla), Records of the Sacred Heart Home and Hospital Bessborough, 1922-98’.
This is an insufficient level of detail, describing 76 years and all records of two institutions in one line.
Dr Maeve O’Rourke is a lecturer in Human Rights at NUI Galway, and Co-Director of the Clann Project (http://www.clannproject.org)
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