Mary Seery Kearney (Fine Gael) | Oireachtas source

I get what the Minister is saying about proving the information has been conveyed. I understand this is the motivation and that we need to prove information has actually been conveyed. I depart slightly from Senator Ruane on that, but it could have been done by addressee-signatory only. Making the person the letter is addressed to the only person who can sign for it would discharge the obligation to prove that he or she has received it. What are we saying? The corollary of complete disclosure under the mechanism in the Bill is there will not be complete disclosure if we do not comply with that mechanism. Therein lies a problem. Are we saying there will be a difference between what is released through a subject access request and exercising the mechanism in the legislation? Will we get different types of disclosure? We need to explore what that means. Will people get information that is redacted if they submit a subject access request? Unless the subject access request is in compliance with this law, and it can be proved the telephone call occurred, how will it be proved the telephone call occurred? That will happen through the caller's affidavit. Somewhere along the line, somebody will have to sign a document that states he or she made that telephone call and the information was conveyed. We are already in a realm where documents were falsified or whatever, so we run the risk of a checkbox no matter what we do in all of this. It is probably unfair of me to allude to the fact there are falsified documents in the background of all this.

This could have been split in two. We could send a letter intended for the addressee only that conveys the actual message. I would be interested to know how that was explored. I take the Minister's point that we need to prove the message is conveyed, but we do not know how we prove the message has been conveyed through a telephone call. What would the evidence be for that? If there will not be transcripts and recordings, we are then reliant on an affidavit from the caller. I do not see how that is better than addressee-signatory only through registered post. If there is to be any sort of recording of the telephone call, it will involve the retention of more than just saying there is a contact preference for no contact. It will be more than that. It will be the reaction of that person. It will lead to a storing of personal data, which I am not sure is what we intend or want to intend.

There are a couple of issues. Will a subject access request under GDPR lead to different information compared with the exercise of this mechanism in the legislation? If it does, when we exercise that mechanism, and if a case is taken regarding the State's failure of preservation of privacy on the part of the person who expressed a preference for no contact, how will that burden of proof on the part of the State be discharged? Will it be through an affidavit on the part of the caller? If there is a difference between the subject access request and the disclosure under the mechanism in the legislation, does that not lead to a constitutional issue in and of itself in respect of the right to identity and the right of disclosure? We run a risk of a constitutional challenge, regardless of which route we go down. I do not see why this could not have been done through an addressee signature only.