Thread by @maeveorourke

Today in the Seanad the Govt continued to state that (1) the 'entire premise' of the Commissions of Investigation Act 2004 is that inquiries are confidential, and (2) the Minister is therefore forced to keep the archive, including survivors' personal data, 'sealed'. Not true:

https://twitter.com/rodericogorman/status/1315964558805282817

1. The Oireachtas is not bound by the current provisions of the 2004 Act, as it is demonstrating by giving part of the Commission's archive to TUSLA. Clearly, it can change the law.

2. The 2004 Act does not force Commissions to operate fully in private.This Commission chose to.

Section 11 of the 2004 Act says that, in general, Commissions shall operate in private UNLESS (a)a witness requests a public hearing and the Commission grants the request, or(b) the Commission finds a public hearing to be in the interests of the investigation and fair procedures.

We know that Philomena Lee requested a public hearing. The Commission refused her request.

irishtimes.com/news/social-af…

Other women also requested public hearings and were refused. The Commission defended this to @ococonuts in 2018, saying 'fewer than five individuals have asked to give their evidence in public'.

Imagine the snowball effect a few hearings may have had.

irishexaminer.com/news/arid-2046…

As for access to records,Section 12 of the 2004 Act requires a Commission to disclose to all witnesses:

'the substance of the evidence in its possession that, in its opinion,the person should have been aware of for the purposes of the evidence that person may give or has given'.

The only qualification to section 12 is that the source of any evidence given in private need not be disclosed to a person who is entitled to it unless disclosure of the source is in the interests of the investigation or fair procedures.

In 2015 solicitors for the @clann_project asked the Commission: how would it 'ensure that survivors have the ability to comment on evidence in testamentary or documentary form from those involved in the running of institutions that are relevant to them?'

clannproject.org/wp-content/upl…

The Commission replied: 'The conduct of the investigation is a matter for the Commission and should it at any stage require commentary on relevant evidence from survivors, arrangements will be made in this regard.'

clannproject.org/wp-content/upl…

Along with survivors and adopted people, we & others made this public knowledge throughout the past 5 years- see e.g.the Archive, News and Clann Report sections of clannproject.org -not to mention a lot of other public advocacy & the reporting of @ococonuts in particular.

As this was happening, survivors & many others had to organise against the Retention of Records Bill 2019 which sought to seal for 75 years all contents of the Ryan Commission archive on the false premise that otherwise the law would require destruction.

jfmresearch.com/retention-of-r…

The Department of the Taoiseach was at the same time insisting that the entire McAleese archive of State records concerning the Magdalene Laundries (which the McAleese Committee specified should be available for research) had to be kept secret-it couldn't point to any legislation

but it said that it was holding the archive 'for safe keeping and not for the purposes of Freedom of Information'.

It could not even give access to the Index (from which we could have re-compiled at least some of the archive) because it was not allowed to open the boxes.

In January of this year, a survivor managed to get a ruling from the Information Commissioner that the Taoiseach's department was acting unlawfully, but there has been no change to the practice yet.

oic.ie/decisions/ms-p…

Meanwhile, the DOJ insists every time it can to the UN that 'no credible evidence' exists of systematic ill-treatment of a criminal nature in the Magdalene Laundries. Survivors can't get to court because of redress scheme waivers.

THIS is what happens when archives are sealed.

Another key point: straightforward personal data subject access requests were refused on a blanket basis by the Commission, contrary to Article 15 GDPR:

This letter says it all:
clannproject.org/wp-content/upl…

While s39 of the 2004 Act originally made Commissions immune from data subject access requests, this changed in 2018.

The amended s39 (by s198 Data Protection Act 2018) restricts subject access only to the extent:

‘necessary and proportionate’ to safeguard a Commission’s effective operation & the future cooperation of witnesses.

This must be a case-by-case assessment, not a blanket policy. And given the subject matter under investigation, how could this exception apply? Never explained.