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Oireachtas.ie

Legal advice is that GDPR is 'prohibited' by 2004 Act on Mother and Baby Homes Commission - Department

The minister has defended the legislation but said he regrets poorly communicating what it intends to do.

LAST UPDATE | 23 Oct 2020

THE DEPARTMENT OF CHILDREN has released a statement responding to concerns raised by the Data Protection Commissioner (DPC) about the application of a right to personal data within a 2004 Act on the Commission into Mother and Baby Homes.

In a statement released tonight, the Department said: “The legal advice received by the Department is that the GDPR right to access personal data (Article 15) is expressly prohibited by section 39 of the Commissions of Investigations Act 2004.”

Minister for Children Roderic O’Gorman said that the Attorney General and the DPC have “maintained ongoing communications” about both the 2004 Act, and the Government’s Mother and Baby Homes Bill.

O’Gorman and the AG have asserted that the Government is legally obliged to seal the database complied by the Commission for 30 years under the 2004 Act, which would mean that survivors and families would not have access to their own data for 30 years.

But the Irish Examiner revealed tonight that the Data Protection Commissioner disagrees with the view put forward by the Department regarding the 2004 Act how GDPR applies to it.

It said that the GDPR law introduced in 2018 “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’”.

The DPC’s intervention came as O’Gorman was addressing the Seanad earlier.

He said he would engage further with the Attorney General on the matter.

Senators quizzed him on the revelation, before passing the Government’s Mother and Baby Homes Bill, by 22 votes to 16.

Regrets anxiety

Earlier, O’Gorman said he deeply regrets causing anxiety among mother and baby home survivors.

Last night the Dáil passed a controversial bill, by 78 votes to 67, that allows the transfer of a database of 60,000 records created by Commission of Investigation into Mother and Baby Homes to Tusla, the Child and Family Agency.

Many survivors and legal experts have expressed anger at the Bill.

Opposition TDs said the legislation was being pushed through without proper scrutiny, and none of their amendments were accepted during an emotional debate yesterday.

O’Gorman has defended the legislation but said he regrets poorly communicating what it intends to do.

Speaking on RTÉ’s Morning Ireland today, O’Gorman: “I needed to do a better job of communicating what the government is doing, and engaging with survivors’ groups.

“And I know a lot of anxiety has been caused, I certainly deeply regret … that my failure to communicate properly caused that anxiety.”

O’Gorman said people have conflated the legislation with the 2004 Act under which the commission operated. He said the latter requires that the records be sealed for 30 years.

GDPR

When asked about GDPR superseding this legislation, O’Gorman said that when the regulations were introduced in Ireland in 2018, the 2004 Act “was amended to explicitly exclude GDPR from applying to the commission’s archives”.

This assertion has been disputed by legal experts, with Dr Maeve O’Rourke of the Clann Project stating: “Neither the Commission nor the Government is permitted under the GDPR to place a blanket seal over the entire archive it holds”.

O’Gorman acknowledged that some experts have disagree with the Attorney General’s interpretation of the law.

“There are some very eminent experts in this area, who disagree with the interpretation given by the Attorney General, so I have said that as well as looking at 30-year rule, we need to look at the application of GDPR against personal information that’s contained in the archives.”

O’Gorman is not legally bound by the advice of the AG, experts have pointed out.

“I’m absolutely aware, particularly for personal information, the 30-year sealing, coming from the original law is really problematic,” O’Gorman said. 

“I’m committed to engaging with the Attorney General to see what avenues there are there to address the 30-year issue, particularly with regard to personal information.”

Jennifer Whitmore, the Social Demcrats’ spokesperson on children, told TheJournal.ie communication is not the issue.

“It is not an issue of bad communication. The issue is bad legislation. There was no proper consultation with survivors, and this has ended up curbing their rights to access information.

“This whole ordeal has caused so much needless anxiety to survivors when the State should have used this opportunity to reassert their rights to access their personal information.”

Whitmore said there was “a genuine effort by all members of the opposition” to provide solutions that would prevent the records being sealed for three decades.

“It is hard to believe that in this day and age we continue to make the same mistakes, continue to try to silence those that the State has treated so badly and continue to brush our past under the carpet,” she added.

Tracing

O’Gorman said the commission’s database, once transferred to Tusla, will help people “establish their identity”. However, survivors have expressed concerns they will be unable to access the database.

The minister acknowledged that current tracing legislation is inadequate and has committed to bringing in new information and tracing legislation next year.

The commission’s report, due to be sent to O’Gorman next week, is 4,000 pages long.

The minister said the report will need to be reviewed by both his department and the Attorney General before being published.

He said he could not give a definitive timeline for making it available but he wants this to happen “as quickly as possible”, saying: “Survivors have waited long enough.”

The Clann Project, comprising the Justice for Magdalenes Research group and the Adoption Rights Alliance, said in a previous statement that the sealing of the archive “means no-one will be able to access their personal records [or information] about their disappeared relatives or babies who are buried in unmarked graves”.

“All of the administrative files, which show how the abusive system of forced family separation was run, will also be withheld.

“It will not be possible to question the conclusions of the Commission of Investigation, to do further research, or to hold wrongdoers to account.”

Updated by Gráinne Ní Aodha

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72 Comments
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    Mute Rob
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    Nov 5th 2020, 1:38 AM

    All this does means is that in 30yrs we have to go through all this again. It’s time the air was cleared, no more secrets.

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    Mute Côte D’oherty
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    Nov 5th 2020, 12:17 AM

    The Catholic Church is one of the most despicable institutions that has ever been imposed on us. Shame on whoever facilitated they’re reign of terror

    207
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    Mute Côte D’oherty
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    Nov 5th 2020, 12:18 AM

    @Côte D’oherty: their *

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    Mute Tony Harris
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    Nov 5th 2020, 12:45 AM

    @Côte D’oherty: “we” facilitated it. They weren’t the Stasi, they weren’t the Gestapo, we flocked to them in our millions.

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    Mute Côte D’oherty
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    Nov 5th 2020, 1:07 AM

    @Tony Harris: agreed

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    Mute Trevor Donoghue
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    Nov 5th 2020, 4:37 AM

    @Tony Harris: Back then they were not the stasi or the gestapo, they were worse , The people feared the Stasi and gestapo because they were all afraid of them, they knew exactly what monsters they were and they would take your lives. The Church did worse because they were doing unspeakable evil disguised as God’s good work and people were good catholics, and we did not facilitate it, we were trying to save our very souls, not simply our lives. And you did not ever go against the church back then if you even wanted a life, or a job, or even to be part of the community you lived it. And the Church still need a long, long way to go to pay for the evil they have done.

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    Mute Tony Doran
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    Nov 5th 2020, 7:45 AM

    @Trevor Donoghue: Well said. People need to wake up and realise how oppressive it was for the Irish people living under those conditions, fearing the church and having to get in line, be good little Catholics or else!

    56
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    Mute ÓDuibhír Abú
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    Nov 5th 2020, 8:02 AM

    @Tony Harris: From the; Cradle to the Grave, the Roman Church Brain washed people.

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    Mute ÓDuibhír Abú
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    Nov 5th 2020, 8:05 AM

    @Tony Harris: When I look back, and Remember Grown Men, Elected Representatives of Dáil Éireann, bending down on their; Knee Kissing the Hand Of the Bishops.

    44
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    Mute Justin Gillespie
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    Nov 5th 2020, 9:13 AM

    @ÓDuibhír Abú: This is what happens when anyone gets unchecked power over someone else. What happened in church & state run institution’s was criminal & shameful & it need to be exposed but don’t think for one minute that abuse nó longer takes place.
    What goes on behind closed doors is equally horrific, the numbers of calls to Childline support this, & we need to beef up ways of allowing victims to reach out for help.

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    Mute ÓDuibhír Abú
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    Nov 5th 2020, 1:09 PM

    @Justin Gillespie: Difference is; an Organization claiming to be representatives of God on earth. Claiming to be protectors of the; Faith, but have destroyed it by their; Ungodly actions.

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    Mute paul mccoy
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    Nov 5th 2020, 12:55 AM

    Typical of this government. Bury it and it’s like it never happened so we don’t have to answer any nasty questions from the public.

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    Mute Bull McCabe
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    Nov 5th 2020, 12:17 AM

    Is there anything to be said to have another tribunal? That way it can be fully investigated and nobody will be prosecuted!

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    Mute Mary Nugent
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    Nov 5th 2020, 7:42 AM

    Shame of a Nation the land of sorrows.

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    Mute Gerry Ryan
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    Nov 5th 2020, 9:01 AM

    So Fine Gael have given the ok for comments

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    Mute Rathminder
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    Nov 5th 2020, 9:19 AM

    I have no connection to the homes but think the idea of a records centre on the site of the Magdalene Laundry is fitting. It could include a library of the books and documents written documenting the history which saw the Irish government’s pattern of discarding any responsibility for the unfortunate. It is fitting for the site, much as the work houses turned into museums. The survivors must have a say in this, however.

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    Mute Celtic Spirit
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    Nov 5th 2020, 9:18 AM

    Bye bye Catholic church. And not before time. An absolute dispicable, vile cult that were given control over our country after independence. From the British Empire to the Holy Roman Empire of the Vatican.

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    Mute Brendan Greene
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    Nov 5th 2020, 10:01 AM

    @Celtic Spirit: it is very naive to imagine that these abuses are in some way related to Catholicism specifically rather than human nature. We now know that similar things occurred all over the world in settings that were entirely secular. All societies like scapegoats to avoid acknowledging our complicity in what happened.

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    Mute Celtic Spirit
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    Nov 5th 2020, 1:04 PM

    @Brendan Greene: I wouldn’t agree with what you’ve said. The Catholic church as an institution were given free reign to do as they pleased without any retribution for their actions. They rules this country with an iron fist. People were conditioned plain and simple. The Irish people were too afraid to question the church in case they went to hell. That is the mark of a cult. Some of the victims then went on to abuse others making their victims secondary or proxy victims of the church.

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    Mute Rob Duggan
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    Nov 5th 2020, 9:16 AM

    People and the state failed we still do. We used to blame the brits, now we project blame to the church. Families shunned their daughters. Aethiest regimes are as brutal as those led by a theocracy(ccp/ussr etc) . We need to look at the ugly truth of our own human behavior and rule of law.

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