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THE CHILDREN’S DEPARTMENT has announced that it will process requests for access to data from the records kept in the Maternal and Child Homes, with two tests that will 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 should be overturned by the department.
The government has taken a U-turn tonight in its approach to the GDPR and handling data access requests for personal information found in mother and baby home records.
In a controversial debate, 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 Investigation Act 2004.
In a statement issued tonight, the government said it has agreed that the rights of all citizens to access personal information about themselves, under data protection legislation and the GDPR are fully respected and implemented.
Talking to TheJournal.ie, The Minister for Children, Equality, Disability, Integration and Youth Affairs, Roderic O’Gorman, said that data requests can be made to the department for the personal information found in the records, but that two “tests” will be carried out. to the request before it is granted. .
“Last Monday, the Data Protection Commissioner raised a problem about the application of the original Investigations Commission Act of 2004, and subsequently amended the file that will be transferred to my department once the commission finishes its work,” O’Gorman said.
“His query was not specifically related to the legislation that was being brought through the Dáil, but to a related issue,” he said.
O’Gorman said the department referred that to the Attorney General’s office, which clarified tonight that the “Amended Act of 2004 does not preclude consideration of data access requests by my department.”
“Therefore, data access requests may be made to my department regarding the personal information contained in the file. And when we get them, my department will have to put two tests on that particular application, ”O’Gorman said.
O’Gorman said the first test would be that the request does not affect the rights and freedoms of others, which is a general test under the GDPR.
“But we would also have to put in the evidence established in article 39 of the 2004 Law, that any restriction on access to information must be necessary and proportionate to safeguard the operation of the investigation commissions and the future cooperation of witnesses” O’Gorman said.
Talking to TheJournal.ie, attorney Simon McGarr said 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 must be discarded by the department.
“There is a long series of jurisprudence dating back to the 1970s, which says that states have a duty to directly apply European law and in any case where there is a national law that contradicts or infringes the exercise of European rights, they must establish that apart and basically they must ignore it and apply EU law directly, “said McGarr.
“Therefore, the section of Section 39, which according to the previous AG advice that was cited allegedly prohibited the GDPR, is still as illegal now as it was then, and should not be applied, if it is in conflict with the GDPR. , should be put aside. “
“To install it [the second test] as an access barrier is to violate article 12.2 of the RGPD, which says that the data controller will do everything possible to facilitate the interested party “.
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McGarr said there were 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 a legal error.”
“However, he is not passing a law. He is simply announcing that this is the policy that his department will apply, and it is up to him to amend that policy immediately or face the consequences of not changing it. “
McGarr said the advice from the attorney general’s office cited in last week’s Dáil debate saying that Irish law had prohibited the application of GDPR was not true, which the current attorney general has since acknowledged.
“We were not told when the minister received that previous advice from the attorney general that he quoted in the Dail last week during the debate, but it is telling that the quote he used quoting the advice of the attorney general used language that was repealed in 2018., suggesting that perhaps that advice was not the most recent and has not been reviewed since the GDPR went into effect, “said McGarr.
“It would be surprising if I relied on pre-GDPR advice to justify an argument that the GDPR did not apply and if I said that to Dáil.”
The Dáil approved a bill last week to allow the transfer of a 60,000-record database created by the Household Investigation Commission for Mothers and Babies to Tusla by 78 votes to 67.
In response to the disappointment and protests against the bill, the government announced tonight that it will establish a national archive of records related to institutional trauma in the 20th century.
Additional reporting by Rónán Duffy
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