Mr. Dale Sunderland:

There are a number of issues there. We acknowledge that this issue is complex and long-running and that there are issues above and beyond data protection and the understanding of it. Having listened to what various speakers said, including even before this meeting, I believe the long-running issue has been these competing rights. The I.O'T. case was referred to. We are not constitutional experts either, but our understanding is that each of those rights, including the right to know about your origins vis-à-visthe right to privacy, might be constrained by the weight of the other as well as by the common good. This is the complex situation we are in. It is perhaps somewhat beyond the role of the commission to comment on those constitutional matters in respect of the balancing of rights.

What I can comment on is the question of the right of access, on which the GDPR and the Constitution are ad idem, in our view. The right of access is the objective. Then it is a matter of making sure it is not overly prejudicial to the rights and freedoms of others. I heard some of the previous contributions and there was a discussion about issues of the balancing of rights and its place within the GDPR.

That brings me to Article 15 of the GDPR, which we discussed at the committee's previous meeting, and specifically Article 15.4, which states that the right of access is not absolute and that the right to obtain a copy of personal data "shall not adversely affect the rights and freedoms of others". Inherent in Article 15, therefore, specifically Article 15.4, is a balancing test that has to be carried out. It is quite clear that Article 15, relating to the right of access, provides for a really important and fundamental right. It is one of the core rights under the GDPR. The DPC is very active in vindicating that right, but it is not an absolute right. The GDPR recognises that. There may be occasions when that right has to cede because of the impact on another person. The text is specific that the right of access or the right to obtain a copy of personal data "shall not adversely affect the rights and freedoms of others".

At the last meeting I suggested that our understanding was that the proposed Bill is seeking to acknowledge the right of access and that the view of Minister and the Department was that the right of access was to be given while ensuring that a framework was put in place to allow that to be done in a coherent and clear way whereby there would be a common approach across all the relevant bodies, perhaps as opposed to individual data controllers seeking to attempt this right of balance or to ensure that these rights were given proper effect. I suggested that certain safeguards in the proposed Bill could be an effective measure to support the balancing that needs to happen under Article 15.4. It appeared to us that, in the general scheme, issues such as the information session and other such proposed measures were the Department's means by which to ensure that the right of access can be fully respected and can mitigate any adverse impact on the rights of others - for example, the rights of the birth parent, in this case the birth mother. That is not to say the DPC is saying that the general scheme of the Bill and how it is proposed provides all the appropriate solutions, but the intention is that the provision of a suite of safeguards allows for that assessment under Article 15. The proposed Bill codifies that in legislation in outlining how that Article 15.4 requirement can be met and respected. That is the DPC's view.

We believe there are complex issues at play here. The right of access is paramount but needs to be seen in the context of the GDPR and the requirement to ensure that the right of access does not adversely impact the rights and freedoms of others. Of course, one of those rights and freedoms is the right of privacy, and there are also all the rights that come into play under the European Union Charter of Fundamental Rights. The Deputy may wish to drill down a little further on aspects of my response, and I can reply further, but I will stop at that for now.