Thread by @maeveorourke

Colm Keena's piece in the Irish Times will hopefully be read alongside my previous Op Eds that explain key issues arising with #UnsealTheArchives

(here thejournal.ie/readme/maeve-o… and here irishexaminer.com/opinion/commen…)

and I provide a response to Colm's points in the thread below:

https://twitter.com/MichealMartinTD/status/1319970142126735360

First, the article states that the Commission's purpose was 'to bring story of what happened in institutions into the open'. This is pretty much the problem, that the Commission has functioned to provide a story to the general public and not to give access to those affected by

the gross and systematic rights violations at stake to their own information and that concerning their deceased or disappeared family members.

The Commission has not allowed those affected to see or comment on any of the records - whether personal files or administrative files-

that is has gathered over the past 5 years. As argued in the @clann_project Report, this is contrary to the basic rights of victims and survivors of torture and other forms of ill-treatment, enforced disappearance, medical experimentation, arbitrary detention etc - to participate

in a state inquiry into their abuse.Last April, when the Commission produced a report on burials & the use of infants' bodies for experimentation,the people affected still did not have access to the Commission's archive,i.e. to records it was using to create its public narrative.

In 2018,when the GDPR came into force, the Commission became subject to it.Section 39 of the 2004 Commissions of Investigation Act was amended by the 2018 Data Protection Act to allow restrictions on the right to access personal data ONLY to the extent necessary and proportionate

to safeguard the effective functioning of commissions and the future cooperation of witnesses. This could never have been a blanket bar to accessing personal data: say Art 23 GDPR, the DPC's advice to Government, the @iwla_ie & @Tupp_Ed among others. Nevertheless the Commission

operated a blanket policy of prohibiting personal data access. It didn't use its powers under s11 or indeed its obligation under s12 to provide anyone affected with any records at all.

For 5 years the Government has known of this massive problem because survivors,adopted people

those of us in @clann_project @maglaundries @adoptionrights and @JamesGallen @maireadenright @sineadring @SarahAnneBuckle to name but a few have been stating it constantly.

When Minister @rodericogorman announced his Bill a month ago,his officials were now saying that they would

replicate this policy: that when they receive the Commission's archive into the Minister's office they will be 'sealing' it for 30 years. This is contrary to EU law. But apparently, we need to remember that the Commission will be issuing a lengthy report that will tell the story.

Second, the IT piece says that the database which the Bill sends to TUSLA 'is a very useful resource, not least for those dealing with requests from adopted people anxious to get information about their birth parents'.

This database will also be in the Minister's office. It is

indeed extremely useful and he is obliged to provide data subject access to it according to the GDPR. (His statements to date have been that he cannot, but he must and we hope he will.)

Crucially, it provides information about adopted people's own identity.Their identity is not

third party data, and unfortunately to date TUSLA appears to have treated it as such. The Minister can and must do better when he receives the database.He will also receive requests from others incl. mothers who are searching for information about themselves and/or relatives.

Third, Colm Keena's piece says there is 'a misunderstanding as to what the new legislation was designed to address'. This legislation ensures that the Minister gets a full copy of the Commission's archive, while sending a chunk of it to TUSLA. However, what many are refusing to

acknowledge is that the legislation does not rectify the Department's repeatedly stated unlawful policy that it will not be providing any access to the 'saved' archive when it receives it.

The Government refused all amendments proposed that would have clarified that the Minister

and his officials will, as they are required to under EU law, respond to data subject requests from the moment they receive the archive.

The Bill,even in its disgracefully rushed state,could easily have included this amendment which the Govt could see was necessary in practice.

It could have included another amendment to show good faith prior to future legislation,to send any copies of Departmental records in the Minister's archive that should already be in the National Archives (but are not b/c the NAI is too underfunded to operate properly) to the NAI

And it could have included an amendment to require production of the full Finding Aids to the Commission's archive, to help with consultation on the legislation that the Minister says he is committed to - that will deal more comprehensively with 'historical' abuse archives.

Fourth, Colm Keena states that the 2004 Act 'stipulates that commission records must be kept under wraps for 30 years'. It does not. The Government has never fully explained how the alleged 'sealing' of the archive arises.

Fifth, Keena notes the 'testimony was not challenged'.

He does not note that several women including Philomena Lee asked for and were refused a public hearing, or that people have stated they were unable to find a way of getting out of the 'Confidential Committee' (which was the only one advertised) and into the Investigative arm.

Fifth, Keena does acknowledge that the Government's policy is that the entire Commission's archive that goes to the Minister will be withheld for 30 years. Again, this is unlawful and its legal basis has not been explained by Government.

Relatedly, the Taoiseach's Department is

currently holding the entire McAleese archive (including even the Index to it) 'for safe keeping and not for the purposes of the Freedom of Information Act'. The Information Commissioner has found this unlawful oic.ie/decisions/ms-p… but the practice has not changed yet.

Sixth, Keena notes an amendment that was put into the Bill to require the Commission to write between now and February to everyone who came to the Confidential Committee to ask whether they would like their personal data redacted from the archive. The amendment does not require

the Commission to give each person a copy of what they said. I hope the Commission will give this to people (surely it will have to?) but it has always claimed that it is criminally prohibited from giving anyone a copy of their transcript. Again, the Bill could have fixed this.

Finally (but I'm happy to keep responding to anything I've missed), I am not casting aspersions on anyone's intentions. In my opinion, big mistakes have been made. They need to be acknowledged and fixed. And fast - people affected have no more time to wait.