Dr. Fred Logue:

I thank the Chair and the members of the committee for the opportunity to make this brief submission about the information law aspects of the Bill. I practise in information law and I act for individuals and public and private sector organisations. In particular, I would like to comment on the handling of personal data which comes within the scope of EU law, the general data protection regulation and the Data Protection Act 2018. Under the doctrine of primacy of EU law, any national law that conflicts with EU law must be set aside and that is an obligation on public authorities. Insofar as the Bill would conflict with the data protection regulation, the National Archives, as a public body, would be bound under the treaties to disapply it. Therefore, some aspects of the Bill, which I will discuss shortly, would in my view not even be binding on the National Archives. Even under Irish law, it is impermissible to pass legislation that completely seals records. Under the Constitution, the courts have full and natural original jurisdiction, so the High Court can order access to records.

The Bill’s provisions need to be understood to be without prejudice to data subject rights, including the right of access. I recommend that the Bill be amended to recognise that any aspects which put records beyond reach are without prejudice to data subject rights.

I do not believe there is a concept of sealing a record in Irish law. I did a brief search of the Statute Book but could not find any legislation which dealt with that. It seems that it will be over and above withholding it from public access. My fear is that sealing will be interpreted narrowly as meaning no access whatsoever, even internally within the National Archives. I also fear that it will be interpreted as no access if there is a dispute about access or if there is a subject access request. This is a weak provision in the Bill.

As my colleague noted, there is already provision in the National Archives Act to protect particular interests. In the Freedom of Information Act and the general data protection regulation, GDPR, there are provisions which protect both private and public interests which could be harmed if access was granted. Again, why are those provisions not suitable to protect the interests that this Bill seeks to protect?

The Bill could be strengthened by expressly recognising rights of access, as directed by the courts, as rights of data subjects. There should be ancillary access to give effect to those rights. The Data Protection Commissioner must be able to order access to personal data and the staff of the National Archives or their contractors must be able to access the archives in order to give effect to those rights.