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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.

Image: Oireachtas.ie

Updated Oct 23rd 2020, 10:15 PM

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.

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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

About the author:

Órla Ryan

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