Minister accused of data law breach
Watchdog: Sealing of Mother and Baby files ‘illegal’
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.’