Irish Daily Mail

Minister accused of data law breach

Watchdog: Sealing of Mother and Baby files ‘illegal’

- By Cate McCurry news@dailymail.ie

THE Government did not follow the national data watchdog’s advice on the Mother and Baby Homes Bill, it has emerged.

In a statement yesterday, the Data Protection Commission said the legislatio­n breaches existing Irish and EU law on accessibil­ity of personal data.

In passing the legislatio­n on Thursday, Children’s Minister Roderic O’Gorman said his advice from the Attorney General was that access to the records had been explicitly restricted by the Commission­s of Investigat­ion Act 2004.

However, a statement from the data watchdog reveals that this is entirely contrary to the observatio­ns provided to the minister’s department by the commission­er.

‘The DPC provided a number of observatio­ns on the Data Protection Impact Assessment,’ deputy commission­er Graham Doyle said in a statement yesterday.

Opposition politician­s have now demanded the Children’s Minister explain why he proceeded with the Mother and Baby Homes Bill. Apart from a database which is being sent to the child and family agency, Tusla, the records will be sealed for the next three decades.

Mr O’Gorman has insisted that the proposed legislatio­n, which allows a database created by the Commission of Investigat­ion into Mother and Baby Homes to be transferre­d to Tusla, does not t seal the records for 30 years.

However, this claim has been n disputed by TDs, survivors, , legal experts and academics.

And now, the data watchdog, in a strongly worded statement, agrees, saying: ‘It is necessary for the Department [of Children] to demonstrat­e why in all the circumstan­ces of this commission it would be necessary to restrict rights of access, and equally it is necessary for the department to consider how in practical terms they can ensure that the provisions on sealing in the 2004 Act do not render the exercise of rights impossible where the necessity and proportion­ality of restrictin­g those rights is not made out.’

The Dáil passed the Bill by 78 votes to 67 on Thursday night.

There has been widespread criticism of the legislatio­n by Opposition TDs, who say it has been rushed through without proper scrutiny. The Dáil debated amendments to the Commission of Investigat­ion; however, Minister O’Gorman’s rejection of amendments was met with anger and criticism.

The minister told the Dáil that the legislatio­n will return to the Seanad for further considerat­ion.

In a statement yesterday, Data Protection Commission deputy commission­er Mr Doyle said: ‘The DPC provided a number of observatio­ns on the DPIA [Data Protection Impact Assessment].

‘In relation to the matter you raise about “rights of access” to informatio­n, it should be noted firstly that the rights under data protection legislatio­n relate specifical­ly to a right of access by an individual to their own personal data held by an organisati­on r ather than a broader “right to informatio­n”.

‘Secondly, the Data Protection Act 2018, in Section 198, explicitly amended Section 39 of the Commission of Investigat­ion Act 2004 and now provides 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”. It would appear to the DPC... that the separate provisions of the 2004 Act in relation to the sealing of documents were not intended in the context of the amendment to the 2018 Act to provide an effective “blanket” barrier to the exercise of rights.’

The Children’s Minister told RTÉd: ‘I acknowledg­e, as minister, I needed to do a better job at communicat­ing what the Government was doing and engaging with survivor groups. I know a lot of anxiety has been caused and I deeply regret the fact that my failures to communicat­e properly caused that anxiety.’

He continued: ‘Under the existing law, in which the mother and baby homes were originally establishe­d, all the archives from the Commission of Investigat­ion have to be sealed for 30 years, but when we saw the value this particular database could have for helping children establish their identity, we decided to act to ensure the database, and records that support it, don’t go into that archive.

‘We’ve passed that law to ensure the database and supporting records are taken out for the time being and given to Tusla.’

The Department of Children last night said it has maintained communicat­ion with the DPC and the Attorney General regarding the Mother and Baby Homes Bill.

In a statement, it said the Minister is ‘committed to a re-examinatio­n of the current approach, focusing on how access is provided to the archives for personal informatio­n validating for survivors.’

 ??  ?? Site of mass grave: The Mother and Baby Home in Tuam, Co. Galway
Site of mass grave: The Mother and Baby Home in Tuam, Co. Galway
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