Minister for Children Roderic O’Gorman has asked the Commission of Investigation into Mother and Baby Homes if destroyed notes and tapes of interviews with survivors could be salvaged.
The deletion of the files has caused a backlash among survivors, hundreds of whom provided personal accounts to a confidential committee set up by the commission. The Oireachtas Committee on Children will hear evidence on the issue on Tuesday.
In a letter to Judge Yvonne Murphy, chairwoman of the commission, Mr O’Gorman asked if “with the assistance of specialist technical expertise, it may be that personal data may be retrieved from any source, including the server or from backup copies that may have been made”.
The repository of data compiled by the commission is set to be transferred to the Department of Children at the end of the month, at which point Mr O'Gorman will become the data controller for the archive. This role includes administering requests from people in relation to their data, including to supply any information relating to them, or rectify inaccurate or incomplete information held on them, under the General Data Protection Regulation (GDPR).
The Minister told Judge Murphy that clarification on whether or not information could be salvaged "would be hugely helpful in informing how I intend to proceed to give effect" to his obligations.
"Clarification at this juncture of whether the recordings and notes are recoverable would greatly assist me with how I will address the right to rectification," he wrote. It is understood that no reply has yet been received on the matter from Ms Justice Murphy.
Permission
In a briefing note sent by Mr O’Gorman to the committee prior to his appearance, he wrote that while he was not in a position to speak for the commission, he notes that it wrote in its final report that witnesses were asked for permission to record their evidence “on the clear understanding that the recordings would be used only as an aide memoire for the researcher when compiling the report and would then be destroyed”.
Mr O’Gorman’s note said the decision not to retain such recordings was taken to “ensure the anonymity it had promised”, and that it “appears that the commission advised witnesses in advance of this protocol”. He also argues that as the commission is independent, he “had no role or knowledge of the operational decisions taken by the commission in the course of this work”.
The deletion of the records, even if done in line with the committee’s stated approach, may nonetheless raise data protection issues, and the Data Protection Commissioner wrote to the mother and baby homes commission after the issue emerged.
In his note, Mr O’Gorman states that he shares a concern “to support clarity on these important matters in the public interest, and most especially in the interests of those survivors who so courageously contributed their stories to the confidential committee process”.
However, he also warned of “potentially complex legal and policy issues which could arise in relation to any records that might be recovered”, warning that third-party rights would have to be considered, especially where information was given informally and not under oath.
The mother and baby homes commission is set to be dissolved at the end of February, despite calls from some advocates that its lifespan be extended in order to deal with concerns relating to its final report and the records it gathered. However, Mr O’Gorman told the committee in his note that “it is not clear at this point that an extension is, in fact, necessary to clarify these matters, or that extending the timeframe of the commission would assist in this regard”.
The department is consulting with the Data Protection Commission (DPC) on its policies and procedures for dealing with subject access requests – a form of data request made under the GDPR – which it intends to publish later in February.
