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The Government has violated European and Irish laws regarding the accessibility of personal data by voting to seal maternal and child home records for thirty years.
The Data Protection Commission was consulted by the Children’s Department prior to the drafting of the Mother and Baby Homes Bill on the Data Protection Impact Assessment which it had commissioned in relation to the legislation.
Passing the legislation Thursday night, Children’s Minister Roderic O’Gorman said his advice from the Attorney General was that access to records had been explicitly restricted by the Commissions of Inquiry Act of 2004.
However, the Irish examiner may reveal that this is totally contrary to the observations provided to the Department by the DPC.
In addition to a database to be sent to the children’s and family agency, Tusla, the records will be sealed for the next three decades.
“The DPC provided a number of comments on the DPIA,” Deputy Commissioner Graham Doyle said on the matter.
It said that the Data Protection Act 2018, drafted to enact the powerful EU General Data Protection Regulation (GDPR) within Irish law, “explicitly amended” the Commissions of Inquiry Act 2004 so that “any restriction of the right of personal access the data processed by the Commission can only be implemented ‘to the extent necessary and proportionate to safeguard the effective functioning of the commissions and the future cooperation of witnesses’ ”.
“It would appear to the DPC to be the case that the separate provisions of the 2004 Act in relation to document sealing were not intended in the context of the 2018 Act amendment to provide an effective ‘blanket’ barrier to the exercise of rights, “said Doyle.
The deputy commissioner added that it is “necessary” for the Department to demonstrate “why in all the circumstances of this Commission it would be necessary to restrict access rights” and how, by sealing the records, it can safeguard the rights of citizens to access their own information, especially when the necessity and proportionality of this act has not been defined (key measures according to the RGPD).
It is understood that the DPC fundamentally disagrees with the Department’s approach to the new legislation.
“The Minister admits that he went back and forth with the Attorney General and that the Commissions Act of 2004 requires that the records be sealed,” said a source with knowledge of the matter.
“But that law was produced in 2004, it predates the EU charter on fundamental rights and the GDPR and the 2018 data protection law, and where there is a conflict between national and EU law, the EU has primacy, “they said.
“He (Minister O’Gorman) has received advice that he feels he should follow, but he also clearly realizes that something is wrong,” the source said.
“In fairness to the Department, they are trying to do the right thing, but they are heartbroken that they did such a poor job on communications. They have to legislate to ensure that the Commission does not write the information into the records. Really, the question is how everything was left so late. “The Maternal and Child Homes Commission will be dissolved at the end of October, which has precipitated the need to pass legislation in the Oireachtas on records.
Earlier, Minister O’Gorman said he “deeply regrets” his inability to adequately communicate with survivors of maternal and child homes about the new laws that will seal their records for 30 years.
He admitted that the controversial bill, which was voted through the Dail by the three government parties on Thursday night, has caused “anxiety”.
O’Gorman said he will now consult with groups of survivors and academic experts after the bill sparked fury among opposition TDs and former residents of mother and baby homes.
“I needed to do a better job communicating what the government was doing and engaging with survivor groups, and I know that a lot of anxiety has been caused and I certainly deeply regret the fact that my failures to communicate properly caused that anxiety,” he said. He said.
“I should have done better in the way that I communicated what I was trying to achieve with this particular legislation.” The Government had argued that the legislation was necessary to protect the information collected by the Mother and Baby Commission over the past five years.
O’Gorman said he will now consult with the Attorney General to see “what avenues there are to address the 30-year issue, particularly with respect to personal information.”
He said he will also work with the Oireachtas Children’s Committee on the issue, adding that he is “committed to addressing” concerns around the 30-year rule.
The Minister admitted that the legislation had been “rushed” into force before the dissolution of the Commission later this month.
He said he did not want to extend the time of the Commission, as this in turn would have delayed the final report in the homes of mothers and babies.
“I didn’t want to ask the survivors to wait any longer, because I understand how eager they are to see the results of the Commission’s investigation of the last five years.
“The report will have about 4,000 pages. It will have specific chapters that deal with each of the maternal and child homes.
“So I think the Commission report is an absolutely essential part of responding to what happened in these homes of mothers and babies,” O’Gorman told RTÉ’s Morning Ireland.
However, the minister’s decision not to accept the opposition’s amendments to the controversial bill elicited particular contempt from the opposition, and Holly Cairns, the TD for Southwest Cork Social Democrats, described the action as “disgusting.”
The opposition DTs hoped to allow the survivors of the system to decide through those amendments whether their names and testimonies should be revealed.
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