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

On the question asked regarding a subject access request versus a request under this legislation, subject access requests are individualised and depend on data control around their determination. I cannot, therefore, say that every subject access request will result in the production of all information.What I can say is that every request for information submitted under this legislation will result in all information being provided. That is as much as I can say there. There may be a difference. The reason for this legislation is a desire to remove that possibility and to remove discretion from individual data controllers who are looking at individual subject access requests. That is essentially what we are doing. The answer will always be "Yes" to giving out the information. With regard to the Senator's question, I cannot speak to any more detail but the disadvantage of subject access requests is that they ultimately come down to a person making a determination having considered a set of facts. That is not the position under this legislation.

I will try to address Senator Ruane's point but I have to look at this from the point of view of the risk of constitutional challenge, which is a genuine risk. I am not trying to raise fears here but the reason all of these issues are before us springs from a constitutional challenge in respect of the release of adoption information, the I. O'T v. B. case. I know there have been plenty of criticisms of how that judgment has been interpreted but the reality is that there is a risk of litigation and constitutional challenge because of the sensitivity of this information. In bringing forward this legislation, in recognising that it could be the subject of constitutional challenge and in preparing to defend the balance the Government has struck by prioritising the right of access to identity information over the right to privacy, we have to show that the State has done its best to convey the parental preference which, at this stage, is at the core of considerations. Parents' right to anonymity has been taken away by this legislation. The adopted person will know their names. The sole remaining part of their privacy rights is their desire not to be contacted. That is what is left of their privacy rights so the State has to demonstrate that it has done its best to convey that preference to the adopted person. The legal advice we have received, and my own belief, is that the best way to convey this is not through a letter, but through that direct contact. That is the best way to ensure the State can show it has done its best to ensure the parental preference was conveyed and the remaining element of parents' privacy rights was respected so that this legislation, although it severely limits the privacy rights of a parent, remains constitutional.

On Senator Moynihan's request, I am always happy to engage with Senators but I do not want to raise expectation that there is still wiggle room here. This has been examined in detail. It has been discussed in both Houses. There has been a real examination of this and the legal advice I have received is that the mechanism put forward is, in the State's view, the best way to vindicate privacy rights while creating a system that will always result in the full release of all information to adopted people, which is, again, the essential aim of this legislation.