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Legal questions

'Two tests' to be applied for Mother and Baby Home survivors to seek access to records

A legal expert has questioned whether the second of the tests is a ‘legal error’.

LAST UPDATE | Oct 29th 2020, 8:38 AM

THE DEPARTMENT OF Children has announced that it will process data access requests for records held on Mother and Baby Homes, with two tests to be applied to a request before it is granted.

However, a legal expert has said that one of the tests is a “legal error” and must be set aside by the department.

The government has made a u-turn tonight on its approach to GDPR and the handling of data access requests for personal information held in the Mother and Baby Homes records.

In a debate that has sparked controversy, the Dáil heard last week that legal advice given to the government said that the right to access personal data under GDPR was prohibited by section 39 of the Commissions of Investigations Act 2004.

In a statement issued this evening, the government said that it has agreed to the rights of all citizens to access personal information about themselves, under data protection legislation and the GDPR are fully respected and implemented

Speaking to, Minister for Children, Equality, Disability, Integration and Youth Affairs Roderic O’Gorman said that data requests can be made to the department for personal information held in the records, but that two “tests” will be put on the request before it is granted.

“Last Monday, the Data Protection Commissioner raised an issue about the application of the original 2004 Commission of Investigations Act, and subsequently amended to the archive that is going to transfer to my department once the commission finishes its work,” O’Gorman said.

“Their query wasn’t specifically in relation to the legislation that was being brought through the Dáil, but it was to a related issue,” he said.

O’Gorman said that the department referred that to the Attorney General’s office, which clarified this evening that the “amended 2004 Act doesn’t preclude consideration of data access requests by my department”.

“So, data access requests can be made to my department regarding personal information contained in the archive. And when we receive those, my department will have to put two tests on that particular request,” O’Gorman said.

O’Gorman said that the first test would be that the request does not impact on the rights and freedoms of others, which is a general test under GDPR.

“But we’d also have to put in the test set out in Section 39 of the 2004 Act, that any restriction on access to information has to be necessary and proportionate to safeguard the operation of Commissions of Investigation, and the future cooperation of witnesses,” O’Gorman said.

Speaking to Newstalk FM this morning, the Minister said “it is important to be clear that the advice from the Attorney General doesn’t resolve all issues for survivors as regards access to personal information”.

O’Gorman said “the burden will have to fall on my Department to show the need for these restrictions” under the two-test system. 

Speaking to, solicitor Simon McGarr said that the second test – the need for restrictions on access to information to be proportionate to safeguard future commissions and witness cooperation – is “inoperative” because it is a “legal error” and should be set aside by the department.

“There’s a long string of case law going back into the 1970s, which says that states have a duty to directly apply European law and in any instance where there is a national law which contradicts or infringes upon the European rights exercise, they must set that aside and they must basically ignore it and apply the EU law directly,” McGarr said.

“And so, the the section under Section 39, which the previous AG advice that was cited claimed to have prohibited the GDPR, is still as unlawful now as it was then, and it is not to be applied – if it is in conflict with the GDPR, it is to be set aside.”

“To install it [the second test] as a bar to access is to breach article 12.2 of the GDPR, which says that every effort will be made by the data controller to facilitate the data subject.”

McGarr said that there was a “number of other very welcome points announced by the government”, but that the “minister has misinformed himself in relation to the GDPR and has fallen into legal error”.

“However, he is not passing a law. He is simply announcing that this is the policy his department will apply, and it’s up to him to immediately amend that policy or face the consequences of failing to amend it.”

McGarr said that the advice from the office of the attorney general cited in last week’s Dáil debate which said that Irish law had prohibited the application of GDPR was not true, which the current attorney general has since acknowledged.

“We weren’t told when the minister got that earlier attorney general advice that he cited in the Dail last week during the debate, but it is telling that the quotation that he used from it citing the AG’s advice used language that was repealed in 2018, suggesting that perhaps that advice wasn’t the freshest and hasn’t been revised since the GDPR came into effect,” McGarr said.

“It would be surprising if he was relying on pre-GDPR advice to justify an argument that the GDPR didn’t apply and if he told the Dáil that.”

The Dáil passed a bill last week to allow the transfer of a database of 60,000 records created by the Commission of Investigation into Mother and Baby Homes to Tusla by 78 votes to 67.

In response to disappointment and protests against the bill, the government has announced tonight that it will set up a national archive of records related to institutional trauma in the 20th century.

Adoption Rights Alliance (ARA), Justice for Magdalenes Research (JFMR) and the Clann Project this morning said it welcomed the Government’s announcement last night and called for the “swift recruitment” of data protection law expert committees, who are independent of government Departments and TUSLA.

The groups also welcomed the government’s promise to establish a national archive of records for institutional trauma. 

“The State must depart from previous habits of excluding and compartmentalising people. Nobody can be left behind,” the groups said. 

“We believe that such a venue will prove to be a place not just to mourn but will also be a place of reflection and inspiration for how we can imagine a more inclusive and creative future for us all.”

Additional reporting by Rónán Duffy

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