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

I take that on board, but it is worth stating that the amendment came in following the introduction of GDPR. That is important. Section 39 was amended in 2018 to deal specifically with the introduction of GDPR.In light of that, the Attorney General has stated that I am bound by that as data controller and by the revised section 39 on responding to data access requests. I do not see that it is morally feasible that my Department can continue to refuse data access requests, specifically for personal information, as we go forward when this archive comes over. I have to deal with the legal interpretation that is given by the Government's legal adviser. We need to fix this problem. I repeat what I said in the Dáil yesterday, namely that I am committed to fixing that problem. I have agreed with the Attorney General that we will sit down and tease through the various issues but I suggested in the Dáil that we use the Committee on Children, Disability, Equality and Integration to bring in the experts, many of whom the Senator cited, to explore the alternative interpretations. I envisage that we would not just bring in the experts but representatives of survivors as well so the need to provide for access to this data is expressed within the House and then I can move. I was asked by a number of Senators what I will do. I do not know today what I will do. We have this legal advice and I have what I and most Senators believe is the right thing to do so I have set out a course of action and that is how I propose to act on this particular issue. We can pass this legislation and then move onto this one process of moving on and dealing with some of the consequences that have been raised. Senators Boylan and Warfield raised the issue and I accept that there will be litigation stemming from a complete refusal to give access to the data. We will have the consequence, as was pointed out, that people will be dragged through the courts in appeals at various stages and I do not want to see that happen. We can find a resolution to this particular issue. I do not profess that it will be easy but we can find a resolution to the issue that faces us.

I thank Senator McDowell for his comments. As I look at the situation, I agree with the Senator's comments about the inappropriateness of a commission of investigation for investigating what happened in the mother and baby homes. As I say, however, we have to deal with the situation as it stands. I have responded to the points made by Senator Doherty about the application of GDPR, particularly section 39. On Senator Seery Kearney's question on what can be done, I have outlined what I have propose to do, specifically on the issue of GDPR. I have addressed Senator Boylan's comments.

Senator Fitzpatrick asked some specific questions about what format the material will come to Tusla and to my Department. As we know now, my Department will be getting the entire archive and Tusla will be getting the database and copies of the relevant records. My understanding is that there will be both electronic and paper copies within what is being transferred, particularly within the archive. There will be significant paper copies within that as well. My Department has already done an initial DPIA and I know Tusla is undertaking one. We are also in continued engagement with the Data Protection Commissioner because we know this is a significant consignment of material in different formats. Therefore, we will continue to engage and to seek advice about the management of that where we feel need to do so. We are conscious of the importance of this material.

That leads me on to the issue of archiving, which Senator Fitzpatrick and other Senators raised. Again, the debate over the last two weeks has highlighted the need for a sensitive way in which material can be stored appropriately as well as be curated to an extent. A number of Senators have referenced the approach taken in Germany with the Stasi Museum as a potential model whereby there was a divisive period in a nation's history with confidential and personal information contained in files. The German State made a decision as to how to approach that. I do not know a huge amount about it yet but it is something I need to look into in more detail. The idea of a permanent location has been mentioned, and the CoLab project on Sean McDermott Street has been cited in that regard. I had a presentation about three weeks ago with Dr. Maeve O'Rourke and Deputy Gannon in which the ideas for that were outlined. Those ideas are definitely interesting. I cannot make an absolute commitment on it today.

Our focus has been on the mother and baby homes archive. There are other archives. There is the archive of the Ryan commission, which was a source of considerable debate in the previous Oireachtas and which was not resolved. There is the McAleese commission as well, which is another detailed archive. These archives are in a legal limbo to a certain extent and that is not appropriate either. I know the term "all-of-government approach" is overused but these issues are not just for the Department of Children and Youth Affairs. They are issues that stem from other Departments as well. Whereas the legal basis for the investigations differ, some of the broad principles about the sensitivity of the material that these investigations addressed and the desire among those who were victims to access that information, are common across them all. As I said at the start, I have committed to that and I will be engaging with the Taoiseach and my ministerial colleagues. I had a quick conversation with the Minister for Education and Skills yesterday to get a sense of her situation with the Ryan report. That is ongoing work but I am convinced of the need for an archive. If we can do that and combine it with some sense of memorialisation, that may be where the Sean McDermott Street site would be appropriate. We could have something like an archive commemoration but perhaps there could be some societal and community gain in the area as well. That is an attractive package and it would be one element of an appropriate memorialisation of everything that has happened.