I propose to take Questions Nos. 531, 543, 547, 548, 565, 570 to 572, inclusive, 574 and 575 together.
I thank the Deputies for raising the important concerns of survivors in relation to the audio recordings made by the Commission's Confidential Committee. This specific module was created alongside the inquisitorial process to facilitate those with lived experiences of these institutions to provide accounts of their experiences in complete confidence and as informally as possible in the circumstances.
The Commission's terms of reference required the Confidential Committee to provide for individuals who wish to have their identity remain confidential. The Commission is independent in the conduct of its inquiries and I had no role in or knowledge of operational decisions taken by the Commission in the course of its work. In its Final Report, the Commission notes that “Witnesses were asked for permission to record their evidence on the clear understanding that the recordings would be used only as an aide memoire for the researcher when compiling the report and would then be destroyed. All such recordings were destroyed after the report was added to the Confidential Committee electronic repository of information.”
Therefore, the decision not to retain these recordings was taken by the Commission to ensure the anonymity it had promised. My Department's understanding is that recordings were made as an aid to the work of the Confidential Committee and that the above reference includes contemporaneous notes taken by the note taker at the same time and used to create the records retained for the Confidential Committee.
In October 2020, Government introduced urgent legislation to protect and preserve the Commission’s records. This legislation prevented the redaction of personal information so that the records can be made available to those seeking access to their personal information.
The only exception to the above requirement was to facilitate persons who voluntarily met the Confidential Committee to decide to have their name and contact details redacted so as to protect their anonymity. This provision reflects the promise of confidentiality and anonymity which was given by the Commission to people who attended the Confidential Committee. No such anonymity applies to the sworn testimony given before the Commission itself.
Many of the mothers and children have undoubtedly had difficult experiences where their agency was taken away and it would be unconscionable to renege on a commitment of confidentiality given to them.
The Commission is due to deposit its full archive with my Department prior to its dissolution at the end of the month. In the interim, the independent Commission continues to be the data controller for its records.
Intensive preparations are ongoing to ensure subject access requests can be processed in my Department in full compliance with the Data Protection Regulatory Framework. In the context of these preparations, I have has sought further information from the Chair of the Commission to clarify whether it may be technically possible to recover any recordings or notes made by the Confidential Committee.
In addition, I am liaising closely with the Data Protection Commissioner to ensure these matters can be appropriately addressed by the Commission prior to its dissolution.
A decision on any further action will be informed by this information gathering exercise and the legal advices of the Attorney General. Any call to extend the timeframe of the Commission of Investigation into Mother and Baby Homes must have regard to the fact that the Commission completed the inquiries it was established to conduct when submitting its Final Report last year. It is not clear at this point that an extension is in fact necessary to clarify these matters, or that extending the timeframe of the Commission would assist in this regard.