RESULTS & MONITORING

The transfer of the Mother and Baby Homes Commission of Investigation’s archive to the Minister for Children, Equality, Disability, Integration and Youth is the latest stage in a struggle to access information for survivors of Ireland’s ‘architecture of containment’.

The government has made a series of promises regarding access to records and legislation.

We want to try and keep track of whether the Government and the state keep these promises.

We’ll be using this page to do that.

1

Commitment: that policies and procedures for the handling of subject access requests will be published before the archive of the Commission of Investigation transfers to the Minister for Children, Equality, Disability, Integration and Youth.

“This intensive work will continue with a view to having robust policies and procedures in place for managing subject access requests. Following further consultations with the data protection commissioner, I hope to publish our policies and procedures prior to 28 February. My Department will also continue to work to ensure GDPR compliant policies are appropriately applied to all access points for personal information. I have placed particular focus on the point of access to personal information as I know it is a matter of deep interest to many Members.”

Source: Roderic O’Gorman, Seanad Debate, 19th January 2021

Status: As of the 10th February no policies and procedures have been published that we are aware of.

2

Commitment: that the data subject rights in the General Data Protection Regulation apply to personal data in the the archive of the Mother and Baby Homes Commission of Investigation and that Subject Access Requests will be handled in accordance with the GDPR.

“I am of the view that the general data protection regulation, GDPR, applies to requests for access to personal data. This is also the view of the Attorney General. … The expansion of GDPR is interesting and affects how we will affirm the rights of people to access their own personal data, which is now a legal requirement at European level which should be adhered to.

Source: Micheál Martin, Dáil debate, 4th November 2021 | Video clip

“More generally, I can assure the Deputy that, as a regulation, the GDPR is directly applicable and it did not require transposition into Irish law. … While Irish law must be interpreted in line with EU law to the extent that it is possible to do so, in case of conflict, EU law would prevail over any inconsistent domestic law in accordance with the principle of primacy of EU law.”

Source: Roderic O’Gorman, Letter to Thomas Pringle T.D. (archived version), 21st January 2021

As the Taoiseach, the Minister for Children, Equality, Disability, Integration and Youth and the Attorney General have confirmed that the GDPR applies to the personal data contained in these archives, there are strict timelines which relate to Subject Access Requests.

“The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request.” [Article 12.3, GDPR]

We will be trying to keep track of whether these timelines are adhered to by the data controllers involved.

“A balancing of rights exercise would need to be conducted by the controller to balance your right of access your personal data as against the identified risk to the third party that may be brought about by the disclosure of the information. The GDPR notes that these considerations should not result simply in a refusal to provide all relevant information, but the controller should endeavour to comply with the request insofar as possible whilst also ensuring adequate protection for the rights and freedoms of others.”

Source: ‘The Right of Access’, Data Protection Commission

Status: Unknown as the archive has not yet transferred to the Minister

3

Commitment: that heads of Bill for information and tracing legislation will be drafted and “ready by the end of March or early April”

“We all understand that access to personal information is a key issue for many former residents. Progressing information and tracing legislation is an absolute priority for me, the Taoiseach and the entire Government. I have been engaging intensively with the Attorney General to this end, approaching the issue in a manner grounded in general data protection regulation, GDPR, where the right of an individual to access personal information about himself or herself is central. My Department and the Attorney General’s office are working with a view to having heads of Bill for information and tracing legislation ready by the end of March or early April. This can then proceed rapidly to pre-legislative scrutiny. “

Source: Roderic O’Gorman, Seanad Debate, 19th January 2021

Status: Remains to be seen

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