Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

Unfortunately, I will not be in a position to accept this group of amendments, following engagement with the Attorney General and officials in my office. Much of that is the result of the core consequence of this commission of inquiry being based on the 2004 legislation.

With regard to Senator Bacik's amendment, section 3(1) specifically outlines what is lawful for the agency to possess and the relevant current statute under which it might do so. Based on my engagement with the Attorney General, it is understood that the provisions contained in this amendment are not possible.

Turning to the amendments which propose to alter the application of data protection law to the archive transferring from the commission to me as the prescribed Minister, the 2004 Act provides for the mechanism for the depositing of documents with the Minister. This is not provided for in this Bill. I am advised again by the Attorney General that right to access to personal data in Article 15 is expressly restricted by section 35 of the Commissions of Investigation Act 2004. The 2004 Act does so in accordance with Article 23 of the GDPR by expressly stating that the restrictions justified as it is necessary and proportionate to safeguard the effective operation of commissions and the future co-operation of witnesses.

The prohibition under section 39 of the 2004 Act does not have the application to the records which will transfer to Tusla as those records are not within the categories listed in this provision. For the avoidance of any doubt, it is important to clarify that the commission is not in possession of original departmental records and no original records will be sealed by the arrangements of the 2004 Act. State records remain in the possession of the relevant statutory bodies and appropriate access is regulated in accordance with the relevant statute.

When it was decided to establish an inquiry into mother and baby homes, the model of investigation the then Government chose was a commission of investigation under the 2004 Act. That decision by that Government and the subsequent establishment under that law of this commission had indelible consequences for the format of the investigation that was to be conducted, for the mode of engagement with the commission, by third parties who gave evidence, for the rights of those third parties, with the commission's report and for its records. The entire premise of the 2004 Act is that investigations are held in private, that confidentiality applies seamlessly to the evidence and records gathered by the inquiry, both during the lifetime of the commission itself and after its dissolution when records have been deposited with the Minister.

The 2004 Act provides for the means whereby the archive and the confidentiality of that archive are preserved. Any disclosure by a Department of the records deposited with it is prohibited by law and would be an offence. This is what is provided for in the original 2004 Act, not what is provided for in this legislation. Unfortunately, I am not in a position to accept these particular amendments.