The Confidential Committee module, and the manner in which it was incorporated into the Commission’s terms of reference, recognised the fundamental importance of the Commission being able to ground its investigations in the lived experiences of those who spent time in these institutions. Given the sensitivity of these deeply personal issues, it was accepted that a bespoke approach was necessary to facilitate and protect individuals who wished to engage confidentially with this module of the Commission’s work.
It is important to acknowledge therefore the reported procedural distinctions in the methodologies employed by the Commission across the different modules of its inquiry process – not all testimony was sworn evidence gathered or processed in accordance with the full rigours of the Commissions of Investigation Act. This does not in any way alter the value or truth of the stories captured in the Confidential Committee part of the Final Report, but it is important to acknowledge the different procedures implemented by the Commission.
The Commission is independent in the conduct of its inquiries and I had no role in, or knowledge of, the particulars of its approach. In its Final Report, the Commission states 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 Commission’s position is that the decision not to retain these recordings was legitimately and legally taken by it 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 and used in preparing the final report.
In October 2020, the Oireachtas enacted the Commission of Investigation (Mother and Baby Homes and certain related Matters) Records, and another Matter, Act 2020 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. Most importantly, 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 the absolute commitment of confidentiality given to them.
Intensive preparations are ongoing in my Department to ensure that once the full archive transfers 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 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 its response, the Commission yesterday clarified that its advice from IT experts is that it is not technically possible to recover the audio recordings. This clarification is important in informing how I need to proceed in giving effect to Article 16 of GDPR, and other related rights of data subjects, when the archive of records transfers my Department.
I have also engaged with the Data Protection Commissioner with a view to supporting clarity on these matters and my Department’s management of the archive once deposited.
A decision on further action, if any, will be informed by these engagements and the legal advices of the Attorney General.