Dr. Maeve O'Rourke:

Head 38 relates to entitled immunity. In essence it says that neither the State nor any agency responsible for giving information, i.e. Tusla or the Adoption Authority of Ireland, will be subject to any claim for damages for failing to do what they are supposed to do unless it was done in bad faith. In essence, subject to Article 82 of the General Data Protection Regulation, it precludes anyone taking a case in negligence, for example, or seeking damages for breach of statutory duty in the court. People do not take those cases to win money. They take those cases to ensure that if they have suffered a legal wrong the same treatment does not happen to other people in future. It is an important accountability mechanism rather than a way for someone to make some cash. It is really important to give that mechanism the respect it is due. There is a need for accountability because it is connected to the importance of the right of access to information not only in the abstract but in the particular context of adoption and other forms of family separation in Ireland that happened in the 20th century. As we all know, many such cases involved abuse. Access to information is not simply the same as that of anyone else accessing data. There is a question of actual justice and so having a remedy and ensuring accountability is important.

Article 82 of the GDPR usually gives a right to compensation for breaches of a subject's rights but we have a blanket restriction under head 40 of the data subject's rights to the extent necessary and proportionate to enable the scheme to operate effectively. It is unclear whether Article 82 would really mean much.

In the explanatory note to head 38 the Government says it wishes to ensure that anyone acting reasonably is not going to be subjected to legal proceedings. In negligence if a person is acting reasonably then he or she has a defence. It does not make sense because a person has to have an arguable case to go to court. If someone was acting reasonably in applying this legislation or any other legal obligation on a person, then there would not be a case against that person in court in the first place.

This is a hugely important and problematic head in our opinion.