Sealing the Records of Irish Institutional Abuse

The Irish Oireachtas (parliament) has passed controversial legislation relating to the Mother and Baby Homes Commission archives. The Commission’s report should be published by the end of the year. It will provide an official history of abuses within Ireland’s system for the management of single mothers and their children. For first-person accounts and human rights analysis, see the Clann Project report.

The legislative debate was important, less because of the new Act itself, than for what we learned about the Irish state’s approach to the personal records of those who were born in and gave birth in the homes. The Commission has not published a full catalogue of its archive. However, its holdings are of two kinds:

• Copies of historical records created by state and religious bodies involved in the system from 1922 onwards. (Although originals have not been destroyed, they are often difficult to access, especially where they are in private or religious hands).
• Records of the Commission’s own processes, including transcripts of witness evidence at Commission hearings and, notably, a database documenting connections between children born in some homes and their parents.

The Equalities Minister initially maintained that, except for the above-mentioned database, the Commission Archive should be sealed for 30 years, without providing for personal data access requests. The 30-year period seemed to be a reference to s.41 of the Commissions of Investigation Act 2004, which in turn refers to The National Archives Act. This was curious for many reasons, not least that the Act governs transfer of records for public inspection, and does not mandate sealing or destruction. This is part of a pattern: legislation permitting open access to data is interpreted to quite different effect.  

Campaigners mobilised the public to protest the proposed sealing (follow #Stand4Truth #RepealtheSeal and #UnsealtheArchive on twitter). The ensuing debate demonstrated stark differences between engrained government practices of secrecy and the rights to access personal data protected under Article 8 of the EU Charter and Article 15 of the EU Geneal Data Protection Regulation (GDPR). Sealing survivors’ data for 30 years would violate the GDPR. Blanket bans on data access are impermissible. A 30 year seal, particularly given many survivors’ ages, would destroy the essence of individuals’ GDPR rights.

Last week, the Minister shifted position. His department will retain a copy of the Commission’s archive and facilitate data access requests. However, he suggested that certain data will not be provided where refusal is necessary and proportionate to: (i) protect the competing rights of third parties or (ii)  safeguard the effective operation of Commissions of inquiry and the future co-operation of witnesses, under s. 198 of the Data Protection Act 2018. Both of these restrictions are concerning.

First, state bodies have tended to over-emphasise third party rights, particularly rights to good name and privacy. For example, the Child and Family Agency (Tusla) routinely denies personal data to adopted adults including by redacting huge portions of their personal files, and aggressively ‘risk assessing’ applications. Former inmates of Magdalene laundries are also denied access to government-held records, despite a favourable ruling of the Data Protection Commissioner.

Second, concern for the effective operation of Commissions is not a legitimate ground for restriction of access to personal data under Article 23 (1) GDPR. Even if it were, government has not legislated for that restriction in detail as required under Article 23(2) GDPR. Neither does it reflect any existing promises made to Commission witnesses. Survivors who wanted to testify in public were prevented from doing so. They could not inspect evidence of relevance to their testimony. None were promised, of course, that testifying at the Commission would later mean that their own transcripts and personal data would be kept from them. None received copies of their transcripts.

Yesterday the government expressed support for an emerging activist proposal to establish an independent archive of institutional abuse. Rather than wait for a culture change within state bodies, an independent archive could be empowered to facilitate rights-centred access to that archive by survivors, their families, researchers and others; perhaps along the lines of the Stasi Records Archive in Berlin. For now, it is important to mark this key turning point in Ireland’s approach to historical injustice. There is finally mainstream recognition that survivors’ human rights are at stake in contemporary responses to past abuse.