Mother and Baby Home survivors can seek access to personal records

Survivors of Mother and Baby Homes can seek access to personal information gathered by a State inquiry, but the privacy rights of others and the State’s ability to hold future inquiries will have to be respected, the Government has said.

The Commission of Investigation into Mother and Babies Homes, which is chaired by former Circuit Court judge, Yvonne Murphy, is due to hand over its 4,000 page-long final report to the Government on Friday,

Speaking to The Irish Times, Minister for Children Roderic O’Gorman said that the attorney general Paul Gallagher has clarified that survivors can request personal information from the archive of the Mother and Baby Homes Commission.

The archive is due to be transferred to the Minister once the report has been sent.

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Despite the clarification, Mr O’Gorman warned that “this is not the answer” to all of the problems encountered by survivors and that “two tests” will have to be used before any information can be released.

“The Data Protection Commissioner raised an issue about the wider access to the archive once it transfers to my department. It was a significant issue. We referred that to the Office of the Attorney General. They came back to my department this evening and clarified that the 2004 Act does not preclude the consideration of data access requests by my department, so my department is bound by GDPR as regards the archive,” Mr O’Gorman said.

“Any data access request to my department will have to be considered on the basis of whether the request impacts on the rights and freedoms of others, but also we have to consider whether the restriction on access to information is necessary or proportionate to safeguard the operation of commissions of investigation and future co-operation of witnesses. Those are the two tests my department will have to implement if we get subject requests for personal information when the archive arrives with us.

“My department will continue to engage with the Data Protection Commissioner to ensure we are GDPR compliant with any requests.”

Mr O’Gorman described the clarification as “useful” but warned “this is not the answer to all survivors’ questions and the real answer, particularly for people who have been adopted, is proper information and tracing legislation.” He said he would bring forward this legislation in 2021.

Mr O’Gorman highlighted that under a new law enacted earlier this week, a separate searchable database of records, which was compiled by the commission, will go to Tusla, the child and family agency. The legislation prompted protests and heated debate in the Dáil over fears records would be sealed for 30 years under under the 2004 Commissions of Investigation Act.

“The real significance in all of this for survivors is that Tusla were given the database through the legislation and I think access to the database via Tusla is more immediately beneficial to survivors.”

Mr O Gorman acknowledged however that Tusla will still have to put in place the “test in relation to the rights and freedoms of others” when it receives data requests.

“There are still issues there as regards the lack of proper information and tracing legislation. I am not claiming that either of these measures – the Attorney General’s clarification or the legislation that I brought in – are going to immediately solve the issue as regards access to personal information.” He said the competing rights of information and privacy will have to be addressed.

The former minister for children Katherine Zappone previously tried to bring in measures that would give adopted people the right to their birth information however her attempts were unsuccessful.

Ms Zappone suggested at one stage that a referendum may be required to ask the people whether the right to information trumps the right to privacy of others. Mr O Gorman said he would prefer “not to go the referendum route because I think the narrowness of this issue may get lost in the context of a referendum debate”.

“We would have to give strong consideration to the GDPR implications of the balancing of the rights to information and a person’s right to privacy.” Mr O’Gorman has committed to publishing the commission’s final report “as soon as possible.”

After a lengthy Cabinet discussion on the same issue, sources indicated that the Government was aiming to publish the report before the end of the year.