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The publication of the Commission of inquiry’s final report into Mother & Baby homes overshadowed the publication at the same time of its 6th Interim report of Feb 2020, which the Government had kept secret at the time.
https://assets.gov.ie/118437/0106544f-af89-4969-8dcf-e8420e3d6e1c.pdf
https://assets.gov.ie/118437/0106544f-af89-4969-8dcf-e8420e3d6e1c.pdf
That report covers three elements
1) Third Party costs
2) What to do with the Commission’s records
3) Further investigations into “the child burial site at Sean Ross.”
1) Third Party costs
2) What to do with the Commission’s records
3) Further investigations into “the child burial site at Sean Ross.”
Let’s focus on 2), the archives and records element, as it is now the critical remaining issue for the Commission to address.
The 6th Interim report, for the first time I am aware of, gives us the Commission’s legal reasoning for saying it would destroy its database.
The 6th Interim report, for the first time I am aware of, gives us the Commission’s legal reasoning for saying it would destroy its database.
Now, it’s not particularly specific, but we know from this that the Commission believed that, although obliged by law to convey all its records to the Minister, it could not comply with that requirement in respect of sensitive personal data.
“As the information compiled in the database is all sensitive personal information, the Commission would be obliged to redact the names and other identifying information about the residents of these homes before submitting to the Minister.”
Now, what is the source of the obligation the Commission believed it had? Surely, with the invocation of sensitive personal information, we can guess it is the GDPR and Data Protection Act?
This is of immediate interest to us in two ways.
Firstly, it turns out that the Department of Children - who received the 6th interim report- continued to assert that the GDPR was “prohibited” from applying to the Commission even after the Commission raised GDPR issues.
Firstly, it turns out that the Department of Children - who received the 6th interim report- continued to assert that the GDPR was “prohibited” from applying to the Commission even after the Commission raised GDPR issues.
The response was so profound they introduced legislation to deal with that GDPR question from the Commission last Oct, even while arguing it didn’t apply to the Commission.
This does put a new context on all the rejections of GDPR arguments, while having the 6th interim report.
This does put a new context on all the rejections of GDPR arguments, while having the 6th interim report.
But secondly, it gives us a hint as to how the Commission understands GDPR and- bad news- it does not appear to have a clear understanding of the interplay of legal obligations at play here.
That is particularly true in respect of the letter @ThomasPringleTD got from the Minister this week on his understanding of the Commission’s duties in applying GDPR to its own records before they are transferred to the Minister. https://twitter.com/thomaspringletd/status/1352605446511714306
Data protection, and this is not a widely understood point in State bodies, is not a law requiring secrecy. It isn’t even a law requiring privacy, in the main.
It is a law built on the rights of people, not rights of institutions over data.
We’re not protecting data, but people
It is a law built on the rights of people, not rights of institutions over data.
We’re not protecting data, but people
The Commission has collected swathes of personal data- from records held by different state agencies and from witnesses- both documentary and oral testimony.
It’s final report may not have used that data well, but as long as it exists someone else can do better, later.
It’s final report may not have used that data well, but as long as it exists someone else can do better, later.
But the Commission, in its 6th Interim report, seems to have posited a blanket legal requirement to destroy personal data before giving it to the Minister.
Now, the Minister’s act- correctly, you may be surprised to hear me say- aimed to preserve those records intact.
Now, the Minister’s act- correctly, you may be surprised to hear me say- aimed to preserve those records intact.
But the commission’s destruction of testimony audio recordings before that transfer is made bodes ill.
Here is an account I was sent by one witness to the Commission who asked for a copy of the audio of their testimony or a direct transcript and was refused both.
The witness gave permission for this to be published.
The witness gave permission for this to be published.
Witness account continues.
As I understand it, the legal basis claimed by the Commission for the destruction of the audio records of testimony was “informed consent”.
It stresses witnesses were all told in advance of this plan and gave their testimony knowing this condition.
As I understand it, the legal basis claimed by the Commission for the destruction of the audio records of testimony was “informed consent”.
It stresses witnesses were all told in advance of this plan and gave their testimony knowing this condition.
The accompanying documentation from the Commission to witnesses doesn’t mention anything about destruction of audio records.
Here is the extract from the Commission’s final report, on Page 11 of the section giving an account from the Confidential Committee:
