Jennifer Whitmore speaking outside Leinster House last week Sasko Lazarov/
deleted audio

TDs still pushing for extension of Mother and Baby Homes Commission despite 'miraculous' recovery of testimony

The commission is due to dissolve on 28 February but a number of TDs want its term extended amid concerns over deleted audio recordings.

THE SOCIAL DEMOCRATS’ spokesperson on children has said her party still wants a one-year extension to the Commission of Investigation into Mother and Baby Homes despite the recovery of audio recordings of witness testimony.

TDs will later today debate a SocDems’ private members’ motion which seeks an extension of the commission’s term by one year, ahead of a vote tomorrow. The government is to put down a counter-motion.

Jennifer Whitmore, a co-sponsor of the SocDems’ motion with colleague Holly Cairns, last night told that the “last-minute miraculous retrieval of survivors’ data throws up many unanswered questions”.

“For example, is the government confident that all the data has been retrieved? Is there time between now and the 28th to ascertain if the 550 survivor testimonies are whole and intact? We feel survivors will need further guarantees about data and information.”

The commission is due to dissolve on 28 February but a number of opposition TDs and some government TDs have called for its term to be extended amid concerns over the deletion of audio recordings of witness testimony.

A number of survivors have said that the recordings were deleted without their consent being sought.

Last night it emerged that the recordings could in fact be retrieved.

In a statement, the Department of Children confirmed an IT expert had checked if the audio recordings are retrievable by testing a random sample, and verified that they are “accessible and audible”.

The commission has agreed to deposit the audio recordings with the department.

The commission has stated that approximately 80 people have sought for their interview with the confidential committee to be redacted. It is “now considering how this will be done and has reiterated its commitment to maintain the anonymity of the people in question”, the statement noted.

Speaking to ahead of today’s debate, Whitmore said survivors still want to ask questions about why the audio recordings were deleted without their consent, among other issues.

“Survivors also have raised concerns about how the final report did not accurately reflect their testimony. The Commission will need to be in existence to provide survivors an opportunity to address these discrepancies and offer them a right to rectification of the information.

“It is welcome that they did not, in fact, delete these testimonies as they had previously stated they had, but it is really only one element of the justice that survivors need.”

Whitmore said the deletion of the audio is at odds with GDPR legislation, which states that the processing of a person’s data cannot happen without their consent, and Section 43 of the 2004 Commissions of Investigation Act.

The latter states that, before the dissolution of a commission, “all evidence received by and all documents created by or for the commission” must be given to the relevant minister. This includes “records of interviews conducted” by a commission.

“These are legal questions that people are asking. It’s not necessarily a criticism of the commission, but people want to know what happened there. And they’ve gone to the Data Protection Commissioner (DPC) to ask about that, and the DPC will need time to investigate that,” Whitmore said.

“I think we need to try to move away from the narrative of saying this is an anti-commission thing, it’s not. This is survivors seeking information about their own information, wanting to exert their legal rights, and also seek justice.

“That’s what we need to keep front and centre – this isn’t about upsetting the commissioner, this needs to be about survivors and them not being forgotten,” Whitmore said.

The Wicklow TD had called for a free vote on the issue tomorrow – meaning TDs would not have to vote along party lines.

“This is an issue that should be above politics. The outcome of this week’s vote will speak volumes about how we treat survivors of State-sponsored institutional abuse – and how we make amends for it,” she said.

‘Quite a cynical take’

Whitmore said some people’s framing of the motion as political is “quite a cynical take on it”.

She said calls by members of the Oireachtas Children’s Committee for the chair of the commission, retired judge Justice Yvonne Murphy, or one of the other commissioners to appear before the committee were made in good faith and not an attempt to make headlines, as some people have suggested.

Whitmore said: “That’s quite a cynical take on it. The commission is an independent body. It has conducted all its functions independently – but being independent doesn’t mean that it doesn’t have to answer questions about its methodology, what practices it had in place, what data management, what data processing provisions they had.

“So they’re still accountable, and the very fact that it is independent means that the government can’t answer those questions for them. So it’s because of its function as an independent body that it is the only one who can answer those questions.”

A spokesperson for the Data Protection Commissioner this week told “We have received a response from the Commission and continue to engage with them.”

O’Gorman has to date refused to commit to extending the term of the commission, saying he is waiting for information from the Attorney General on whether or not that is feasible.

He said his focus is on facilitating access and rectification requests from survivors once the commission’s database is transferred to his department at the end of the month.

Whitmore said she believes the database could still be transferred to the Department of Children at the end of month, even if the commission’s term was extended.

“The data can transfer over to the minister and if the commission stays in existence, they both become joint controllers of that data and they both still have a legal role and a legal responsibility with regard to that data.

“So it’s not correct to say that that data can’t transfer over, it can, and it needs to transfer over on the 28th of February,” Whitmore said.

The department last night said it is continuing its preparations to become data controller of the Mother and Baby Homes archive from 28 February and is liaising with the Data Protection Commission in their regard.

“The retrieval of audio recordings from the backup tapes and their imminent transfer to my Department now provides another avenue for the people who appeared before the Committee to access their personal data,” O’Gorman said.

“The request of the approximately 80 people to have their identities redacted will be respected and my Department will liaise with the Commission as current data controller in this regard.

“If any of the people who appeared before the Committee consider that their record is inaccurate or incomplete, they will be able to exercise their GDPR rights with the Department once it becomes data controller. This will involve making a request to exercise their right to rectification after the archive transfers to my Department.”

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